Are Open Adoption Agreements Enforceable In Virginia?

Are Open Adoption Agreements Enforceable In Virginia?

Until relatively recently, the answer was no, they were not enforceable.  Open adoptions still happened, but people didn’t feel the need to make their agreement legally binding.

Virginia held to the traditional view, and still does in most cases, that the adoptive parents are the only parents that the child has.  They are fully free to decide who their child will have a relationship with, just as any other parents would do.

However, this changed a few years ago.  The General Assembly of Virginia provided for what are called Post Adoption Contact and Communication Agreements (PACCA’s).  These are written open adoption agreements.  These agreements may be incorporated into the Final Order of Adoption and therefore become both enforceable and modifiable by the Circuit Court.

This means that if either the birth parents or the adoptive parents want to change the post adoption agreement, they could petition the Circuit Court to do so.  The judge would then hold a hearing and have the authority to change the agreement if he or she believed that the change was in the best interests of the child. 

To date, this has not happened in Virginia.  But it has happened in other states.

The Circuit Court also has the authority to enforce a PACCA, which means that people could be held in contempt of court if they refused to follow the terms of the PACCA.

These concepts, modifiability and enforceability, tend to frighten many adoptive parents, and it is understandable why.  But it is important to note that Circuit Court judges do not have the authority to come up with a PACCA on their own and make it a condition of entering the Final Order.  They can only incorporate a PACCA already agreed upon between the adoptive parents and birth parents. 

Sometimes even in the best of cases, birth parents insist upon a PACCA, and it becomes part of the order.  In other cases, a PACCA provides a possible solution to an otherwise contested adoption.

One of the things required to be included in a PACCA is a clear statement acknowledging that the existence of the Agreement does not affect the validity of the adoption itself, which is final, and may not be reversed.  There are no provisions in Virginia law for reversing an adoption.

If you have any questions about Open Adoption in Virginia, or any other adoption-related matters, please contact me, or call (703) 844-4118 to schedule an appointment.  Adoption consultations are free and can be held over the phone or in person at my Manassas or Fairfax office.