In the important 2011 case of Copeland v. Todd, the Supreme Court of Virginia upheld the constitutionality of Section 63.2-1205 of the Code of Virginia, which sets out the standards which a court must consider in making the determination that the consents of birth parents to a proposed adoption are being withheld contrary to the best interests of the child.
In that case, the Court quoted the 1981 Supreme Court of Virginia case of Doe v. Doe. In Doe, the Court said, “We must determine whether the consequences of harm to the child of allowing the parent-child relationship to continue are more severe than the consequences of its termination.” That is a misleading sentence.
In a contested adoption case, it is not necessary to prove that the relationship between birth parents and the child is harmful to the child. In fact, since we now have Post Adoption Contact and Communication Agreements, birth parents may have a meaningful and beneficial relationship with the child even after an adoption has taken place, and have those rights preserved. So called “open adoptions” are common, whether or not a PACCA exists. And whether or not some contact should occur is really not an issue in a contested adoption case. Frequently, however, adoptive parents testify that it is their intent to allow visits in some form.
The legal issue to be decided by the court is whether the withholding of consent is contrary to the best interests of the child as defined in Section 63.2-1205, which I will explain in upcoming blogs.