Full question:
I was released from a prison after a sentence of two years. When I came back to my house in West Virginia, I found that my wife's sister adopted my 3-year-old daughter. She said that she did this since there was no news from me. I didn’t make any contact because I was in jail. How can I challenge this in court?
- Category: Adoption
- Date:
- State: West Virginia
Answer:
In West Virginia, to give up your daughter for adoption, your wife does not need your consent if the court finds you have abandoned your daughter. The court presumes abandonment if you had failed to financially support your daughter within your means, and failed to visit or communicate your daughter for a period of six months immediately preceding the filing of the adoption petition. But, you will have the opportunity to demonstrate to the court the existence of compelling circumstances that prevented you from supporting, visiting, or communicating with your daughter. Since you were in jail, you can challenge it in court by demonstrating the circumstances.W. Va. Code § 48-22-301 reads:
“***
(b) Consent or relinquishment shall not be required of a parent or of any other person having custody of the adoptive child:
***
(2) Whom the court finds has abandoned the child as set forth in 22-306 [§ 48-22-306]; or
***”
W. Va. Code § 48-22-306 reads:
“(a) Abandonment of a child over the age of six months shall be presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
***
(d) Notwithstanding any provision in this section to the contrary, any birth parent shall have the opportunity to demonstrate to the court the existence of compelling circumstances preventing said parent from supporting, visiting or otherwise communicating with the child: Provided, That in no event may incarceration provide such a compelling circumstance if the crime resulting in the incarceration involved a rape in which the child was conceived.”
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
