COURT OF APPEALS OF VIRGINIA

Present: Judges Fulton, Ortiz and Lorish 

Argued at Richmond, Virginia

A.A., ET AL. 

v. Record No. 0876-23-2

J.M., ET AL. 

J.M., ET AL. 

v. Record No. 0953-23-2

OPINION BY

A.A., ET AL. JUDGE DANIEL E. ORTIZ

JULY 16, 2024

J.M., ET AL. 

v. Record No. 1855-22-2

A.A., ET AL. 

J.M., ET AL. 

v. Record No. 0940-23-2

A.A., ET AL. 

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY

Claude V. Worrell, Judge1

Timothy M. Snyder (Brittany Marie Jones; Charles S. Dameron; 

Damon Porter; Ehson Kashfipour; Blair Connelly; Zachary L. 

Rowen; Lewis F. Powell III; Maya M. Eckstein; Trevor S. Cox; 

Elizabeth S. Vaughan; Latham & Watkins, LLP; Hunton Andrews 

Kurth LLP; Graham Law Firm, PPLC, on briefs), for A.A., et al. 

John S. Moran; Samantha E. Freed, Guardian ad litem for the minor 

child (Hannon E. Wright; Richard L. Mast; McGuireWoods LLP; 

Tremblay & Smith, PLLC; Rakness & Wright, PLC, on briefs), for 

J.M., et al. 

1

Judge Richard Moore originally presided over these matters. Upon his retirement, the 

matters were reassigned to Chief Judge Claude V. Worrell. 

PUBLISHED
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Amicus Curiae: United States; Lewis S. Yelin, Attorney, Appellate 

Staff Civil Division (Richard C. Visek, Acting Legal Adviser; 

Caroline D. Krass, General Counsel; Brian M. Boynton, Principal 

Deputy Assistant Attorney General; Sharon Swingle, Attorney, 

Appellate Staff Civil Division; Jessica D. Aber, United States 

Attorney; Jonathan T. Lucier, Assistant U.S. Attorney; U.S. 

Department of Justice; U.S. Department of State; U.S. Department 

of Defense, on brief), for A.A., et al.

Amicus Curiae: Kids in Need of Defense (KIND) (Murad Hussain; 

Arnold & Porter Kaye Scholer LLP, on brief), for A.A., et al.

Amici Curiae: National Center for Youth Law; Young Center for 

Immigrant Children’s Rights (Rebecca R. Wolozin; Kelly Albinak 

Kribs, on brief), for A.A., et al.

The power to adjudicate the adoption of a child and the associated termination of parental 

or familial relationships stems from the statutory framework enacted by the General Assembly. 

Well-meaning intentions and emergency circumstances are not enough to grant a court the 

authority or power to complete an adoption. This is especially true when a child is physically 

present in a foreign country—here, Afghanistan—that has not waived jurisdiction.

Code § 63.2-1216 is a broad bar against attacking a final adoption order after six months. 

Despite this, the circuit court found that the A.s’

2

challenge—brought well past six months after 

the final adoption order—was not barred and that the final adoption order was void because the 

A.s are de facto parents with parental due process rights in Virginia. But we need not reach this 

issue. Instead, we affirm the circuit court’s decision for a different reason—that while the circuit 

court had subject-matter jurisdiction over the adoption in general terms, it lacked the power to 

render the final adoption order, rendering it void ab initio. The court further lacked the power to 

render the interlocutory adoption order, making it also void ab initio; thus, we reverse the circuit 

court’s decision to leave the interlocutory adoption order in place. We further reverse the 

2 Consistent with our February 16, 2023 order, we use the parties’ initials to maintain 

their anonymity.
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decision to maintain the temporary custody order, as we determine that the custody order is void 

ab initio because the circuit court lacked subject-matter jurisdiction to issue it. Finally, we 

remand the case to the circuit court to consider the A.s’ request for custody of the child.3

BACKGROUND4

This case comes before us with a lengthy procedural history, revolving primarily around 

four court orders: (1) a custody order, issued November 6, 2019; (2) an interlocutory adoption

order, issued November 10, 2019; (3) a final adoption order, entered December 3, 2020; and 

(4) an order voiding the final adoption order, dated May 3, 2023. In November 2019, J.M. and 

his wife, S.M., petitioned the Fluvanna County Juvenile and Domestic Relations (“J&DR”)

District Court for custody of a child living in Afghanistan. Based on representations by J.M. that 

the child was a stateless orphan with severe medical needs and no known family, the court

granted the M.s custody. Following a petition by the M.s to adopt the child, the Fluvanna Circuit 

Court issued an interlocutory adoption order on an emergency basis. A year later, on December 

3, 2020, the circuit court issued a final order allowing the M.s to adopt the child. 

On March 28, 2022, the A.s, an Afghan couple whom the United States government had 

determined were relatives of the child,5petitioned the circuit court to vacate the final adoption 

order and grant them custody of the child. The M.s argued that the A.s lacked standing to 

challenge the adoption and that Code § 63.2-1216, which prohibits challenges to a final adoption 

3 This opinion does not preclude the M.s from filing further custody petitions. 

4

“Although parts of the record are sealed, this [consolidated] appeal requires unsealing 

certain portions to resolve the issues raised by the parties. To the extent that certain facts 

mentioned in this opinion are found in the sealed portions of the record, we unseal only those 

portions.” Mintbrook Devs., LLC v. Groundscapes, LLC, 76 Va. App. 279, 283 n.1 (2022).

5 The M.s dispute the A.s’ biological relationship to the child, asserting that the child’s 

parents were non-Afghan nomadic terrorists and that the A.s have failed to provide DNA 

evidence or other documentary evidence of the relationship. 
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order after six months, barred their collateral attack.6 The A.s filed a motion for summary 

judgment. The court denied the plea in bar and a motion to reconsider the plea in bar filed 

jointly by the M.s and the guardian ad litem. On May 3, 2023, following several evidentiary 

hearings, the circuit court entered summary judgment in part for the A.s. The court voided the 

final adoption order, finding that the A.s were de facto parents of the child and “were entitled to 

some process that they did not receive,” and thus their claim was not barred by Code 

§ 63.2-1216. The court left in place both the interlocutory adoption order and the custody order. 

The court then certified its entire May 3 order, including the most pertinent question of whether 

Code § 63.2-1216 and a lack of standing bar the A.s’ claim. 

Because this appeal comes before us following both the denial of a plea in bar and the 

partial grant of summary judgment—each of which requires us to review the facts through a 

particular lens7—we recite below the uncontested facts while also highlighting the material 

disputes between the parties. 

In September 2019, the United States military found a severely wounded child, about six 

to eight weeks old, on a battlefield in Afghanistan. The A.s claim that the child’s parents were 

farmers killed accidentally in a U.S. airstrike, while the M.s assert that the child’s biological 

parents were non-Afghan terrorists and the child’s mother was killed when she attempted to 

detonate a suicide bomb. 

6 The M.s initially raised these arguments in two demurrers. Although they did not file a 

written plea in bar, the parties agreed to proceed as if the demurrers were pleas in bar and the 

circuit court treated the demurrers accordingly. 

7 When considering a summary judgment motion, the court assesses the facts “in the light 

most favorable to the nonmoving party,” but it is “not permitted to draw inferences that are 

forced, strained, or contrary to reason.” Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 

50, 51 (2004). When considering a plea in bar, the circuit court’s factual findings are “accorded 

the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or 

without evidentiary support.” Hawthorne v. VanMarter, 279 Va. 566, 577 (2010). 
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Because of the child’s serious injuries, United States servicemembers brought her to the 

Department of Defense’s (“DOD”) Bagram Air Base for medical help. Military leaders from the 

U.S. Forces-Afghanistan (“USFOR-A”)

8

coordinated with the International Committee for the 

Red Cross (“ICRC”) and Afghan government officials from the Afghan Ministry of Labor and 

Social Affairs (“Ministry”),

9

in their search for the child’s relatives. 

During this time, J.M. was deployed in Afghanistan as a Marine Corps Judge Advocate. 

He met the child and became concerned for her medical needs and placement. On October 23, 

2019, J.M. attended a meeting with officials from the United States, Afghanistan, and the ICRC 

to discuss the family reunification search. The meeting minutes state that ICRC was “in contact 

with individuals claiming to be relatives of the infant. The Ministry and ICRC need to conduct a 

proper assessment to determine whether these are rightful claims.” 

J.M. began arrangements for the child to travel to the United States because he doubted 

that the medical care she needed could be provided in Afghanistan. The M.s petitioned the 

J&DR court for custody of the child. J.M. represented that the Afghan government did not want 

custody of the child or jurisdiction over the matter and that it did not object to United States

officials assuming jurisdiction and custody. The court believed a waiver of jurisdiction would be 

provided in “a matter of days.” The Afghan government, however, never waived its jurisdiction. 

J.M. also testified that Afghan representatives stated that they did not have the capacity to care 

for the child. The J&DR court issued the custody order on November 6, 2019, granting the M.s 

custody of the child. 

8 USFOR-A is “a component of U.S. Central Command responsible for joint U.S. 

military operations in Afghanistan.” 

9 The Ministry is a government agency in charge of child protection programming, 

custody, and placement in Afghanistan.
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Four days later, the circuit court issued the interlocutory adoption order based on the M.s’

petition for adoption. The court granted the order on an emergency basis, relying on the M.s’ 

statements that if the child was J.M.’s dependent, she could be evacuated from Afghanistan and 

receive medical care at the University of Virginia Health Children’s Hospital (“UVA”). The 

interlocutory adoption order stated that the child was stateless, the search for relatives was 

unsuccessful, and the child was in urgent need of medical treatment. Although the child 

remained with the United States in Afghanistan on Bagram Air Base, the order stated that she 

was in the “physical care and custody” of the M.s in Virginia. Notwithstanding the emergency 

order, the child was not transported to the United States.

On December 31, 2019, the Ministry announced that it had identified the child’s relatives, 

who had been vetted consistent with Afghan law. The Ministry identified M.I.10 as the child’s 

paternal uncle, and the Ministry and USFOR-A concluded that the child was an Afghan national. 

After a month, the Ministry requested that the United States transfer the child to the Afghan 

government for her to be united with her government-identified family, noting that it had granted 

custody to M.I. under Afghan law. The United States determined the Ministry had properly 

verified the child’s family. Based on this, and Afghanistan’s jurisdiction over the child, the 

United States chose to transfer the child to the Afghan government who would proceed to place 

the child in M.I.’s custody. 

On February 26, 2020, after learning that the United States was planning to transfer the 

child, the M.s sought a temporary restraining order (“TRO”) in the United States District Court 

for the Western District of Virginia to prevent the transfer. In this proceeding, the M.s relied on 

the custody order and did not disclose the interlocutory adoption order. The M.s’ counsel 

represented that the M.s did not intend to adopt the child. The district court denied the M.s’ 

10 M.I. is also referred to in the record as H.B., H.I., and H.M.
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request for a TRO. The district court held that the M.s were unlikely to succeed on the merits 

because the custody order was based on Afghanistan’s waiver of jurisdiction and Afghanistan 

had not yet waived jurisdiction. It further held that the DOD should have been provided notice 

of the custody proceedings. The next day, the United States government transferred the child to 

the Afghan government, which then placed the child with her new guardian, M.I. M.I. 

transferred guardianship to his son, A.A., identified by the United States and the A.A.s as the 

child’s first cousin, and A.A.’s partner, F.A.11 

After the circuit court issued the interlocutory adoption order, the M.s informed the court 

of “‘red tape’ and bureaucratic difficulties” with evacuating the child without a final adoption 

order. The M.s did not relay to the circuit court that the federal district court had denied their 

petition for a TRO, that Afghanistan had not waived its jurisdiction, or that the child had been 

transferred to people the United States had determined were the child’s relatives. A timeline of 

events submitted to the court stated that the child was “turned over to [an] anonymous person in 

unknown location by ICRC” in February 2020. J.M. represented to the court that the child was 

being looked after by a young Afghan girl and that he had no specific information as to her 

identity. On December 3, 2020, the circuit court issued a final adoption order. The court based 

its order on the recommendations of the Fluvanna County Department of Social Services and the 

guardian ad litem’s recommendation—neither of which had ever met the child—as well as the 

court’s earlier finding that the child was a stateless orphan. The parties dispute whether the 

United States had notice at any stage of the adoption proceedings, and the circuit court did not 

make a conclusive finding on the issue. The A.s did not receive notice. 

11 The A.s argue that, according to Afghan law, as M.I. is the child’s eldest uncle on her 

father’s side he automatically became the child’s legal guardian or wali once her father died. 

They further assert that as wali M.I. had the power to transfer the child to A.A. irrevocably. The 

M.s counter that the A.s’ experts confirmed that this transfer was not in accordance with Afghan 

law. 
- 8 -

Not long after the child was transferred to the A.s’ physical custody, the M.s hired 

Kimberly Motley, an attorney practicing in Afghanistan, to locate the A.s. Motley contacted the 

A.s and told them that an American family wanted to provide the child with medical care. 

Motley tried to convince the A.s to send the child to the United States for medical treatment. 

While Motley, the M.s, and the A.s were communicating, the Taliban was quickly 

overtaking Afghanistan. A.A. told J.M. that the Taliban had denied his request to send the child 

to the United States. Therefore, J.M. proposed to the A.s that they could come to the United 

States with the child. The M.s assert that J.M. made clear to the A.s that the M.s intended for the 

child to live with them, but the A.s dispute this. After the Afghan government collapsed on 

August 15, 2021, and following more than a year of communication, the A.s agreed to come to 

the United States. The United States asserts that when coordinating the evacuation of the A.s, 

J.M. “falsely informed U.S. personnel that the child was his ‘daughter per both Afghan and U.S. 

court orders,’ and he provided them with a fraudulent document that he described as an Afghan 

court order.”12 Though the child had lived with and been cared for by the A.s for as long as 18 

months13 and had been determined to be the A.s’ relative, J.M. described the A.s only as a 

“Pashtun Couple” accompanying the child. The M.s counter that “the White House, the Office 

of the Vice President, the DOD, and members of Congress . . . supported the efforts to bring [the 

child] to safety.” The M.s further allege that “[t]he Commandant of the Marine Corps approved” 

of J.M.’s actions “with full knowledge of the facts, including [the child]’s location and status as a 

patient in a U.S. military hospital.” 

12 J.M. had an Afghan passport for the child with the name the M.s had given her. The 

passport photo was a digitally altered version of a photo that the A.s provided to Motley. F.A. 

states that when she asked about the name, J.M. told her to be quiet and that the purpose was for 

the child to obtain medical treatment and nothing else. 

13 The M.s dispute whether the child lived consistently with both F.A. and A.A. during 

this time. 
- 9 -

In August 2021, the A.s first flew from Afghanistan to Germany, where they met J.M. in 

person. J.M. asserts that it was only upon meeting that he learned of F.A.’s attachment to the 

child and that A.A. had promised F.A. that the child would not leave her side if they left 

Afghanistan. Instead, J.M. believed that M.I. was responsible for the child, who was incidentally 

being cared for by a teenage girl. 

Upon arriving in the United States, the A.s stayed on the military base at Fort Pickett, 

Virginia. On September 3, 2021, two police officers knocked on the A.s’ door and told them 

they were being moved to a different apartment. They brought A.A., F.A., and the child to a car; 

a woman placed the child in a car seat and told the A.s that they were going to an interview. 

When they reached a meeting room, the woman from the car continued to hold the child. As the 

child tried to get back to F.A., the woman told her that the child could not legally remain with the 

A.s because they were not her biological parents. J.M. came into the room and said he was told 

that he must take the child, or she would be placed in an orphanage. As the child began to cry, 

F.A. begged the woman, saying, “[P]lease give me [my] daughter. She is my daughter. Please 

give her to me.” A few days later, they discovered that a Virginia court had ordered the child’s 

adoption by the M.s. The child has lived with the M.s ever since. 

On March 28, 2022,14 the A.s petitioned the circuit court to vacate the M.s’ final adoption 

order and obtain custody of the child. Under 28 U.S.C. § 517, the United States filed two 

statements of interest. The United States argued that (1) the custody and adoption orders were 

void because of the M.s’ misrepresentations and (2) the circuit court must defer to the federal 

government’s foreign policy decisions to recognize Afghanistan’s jurisdiction and transfer the 

14 The A.s originally filed the petition on December 8, 2021, under the docket number of 

the original adoption case. The circuit court required the A.s to refile their petition as a collateral 

proceeding, and their original briefs were incorporated in their case after refiling on March 28, 

2022. 
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child to the Afghan government for family reunification. The United States also filed two

motions to intervene along with declarations of officials from the Departments of State and 

Defense.15 The court denied the motions without prejudice. 

In its May 3, 2023 order, the circuit court stated that while the child’s citizenship had 

initially been unclear, “it was determined that the child was Afghan,” a fact the court felt was 

“important.” The court found “evidence of some extrinsic fraud” on the part of the M.s in 

obtaining the custody and adoption orders. It further found that the A.s were de facto parents of 

the child and “were entitled to some process that they did not receive.” So the court voided the 

final adoption order, but left the custody order and interlocutory adoption order in effect. The 

court also concluded that “the United States[’] determination with regard to its foreign policy 

imperatives have been met” through its May 3 order vacating the adoption and that the May 3 

order did not conflict with any federal foreign policy decisions. The court then certified the May 

3 order for consideration by this Court, staying any further proceedings concerning the best 

interests of the child.16 

ANALYSIS

As this case is before us on interlocutory appeal, we first affirm that we have jurisdiction 

over all matters presented in the May 3 order certified for interlocutory review. We then review 

whether the circuit court had authority to issue each of the three underlying orders in this case: 

the custody order, the interlocutory adoption order, and the final adoption order. We conclude 

that the court lacked subject-matter jurisdiction to issue the custody order, making it void ab 

15 The M.s argue that these declarations were improperly admitted. Because the issue is 

not addressed in the interlocutory May 3 order, this Court does not have jurisdiction to address 

the matter and will assume without deciding the declarations were properly admitted. 

16 Both the M.s and the A.s appealed the circuit court’s order; we consolidated all four 

appeals for consideration here.
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initio. Whether the circuit court had jurisdiction to issue the interlocutory and final adoption 

orders is more complicated. The circuit court had subject-matter jurisdiction over the adoption 

proceeding. Yet it lacked the power to render the adoption orders because this adoption bore no 

resemblance to those authorized by the adoption code and the child was not present in the United 

States. Thus, the adoption orders are void ab initio. This is true even in light of Code 

§ 63.2-1216’s bar, because the power to render is indispensable and in its absence an order may 

be attacked at any time. As we conclude that the final adoption order was void ab initio, we need 

not address the claim that the A.s are the child’s de facto parents and that this gives them 

parental due process rights in Virginia. 

I. The May 3 Order

We must first consider whether the Court has subject-matter jurisdiction over all the 

matters raised by the parties in this interlocutory appeal. See Morrison v. Bestler, 239 Va. 166, 

170 (1990) (“[A] court always has jurisdiction to determine whether it has subject matter 

jurisdiction . . . .”); Minor v. Commonwealth, 66 Va. App. 728, 737-38 (2016) (“[T]he question

of jurisdiction is one for the determination of the appellate court only. Before the merits of this 

case can be considered, [this Court] must determine whether it has jurisdiction.” (alterations in 

original) (quoting Comcast of Chesterfield Cnty., Inc. v. Bd. of Supervisors, 277 Va. 293, 299 

(2009))). The M.s argue that the A.s’ appeal, No. 0876-23-2, is improper. They argue we cannot 

consider No. 0876-23-2 because the A.s are appealing the non-final May 3 order. 

“[F]or the Court to have jurisdiction of this appeal, the order from which [the A.s] 

appealed must be either a final order or an interlocutory order from which an appeal is statutorily 

authorized.” Comcast, 277 Va. at 300. While the May 3 order is not final,

17 we conclude that 

17 Rule 1:1(b) describes an order as final “if it disposes of the entire matter before the 

court, including all claim(s) and all cause(s) of action against all parties, gives all the relief 

contemplated, and leaves nothing to be done by the court except the ministerial execution of the 
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the parties here are statutorily authorized to appeal the entirety of the May 3 order. Code 

§ 8.01-675.5(A) permits any party to move for certification of an “order or decree for 

interlocutory appeal,” and provides that a circuit court may certify an order for appeal if it makes 

certain findings. The Court may then, in its discretion, grant the appeal “from the interlocutory 

order or decree.” Id. Here, in an order titled “Order Certifying for Interlocutory Appeal” issued 

on May 12, 2023, the circuit court stated that “the May 3, 2023 Order of this [c]ourt granting 

partial summary judgment is certified for interlocutory appeal pursuant to Virginia Code 

§ 8.01-675.5.” (Emphasis added). This Court granted the petitions for interlocutory appeal filed 

by both the M.s and the A.s “from certain orders entered by” the circuit court—meaning the May 

3 order, as certified by the May 12 order. Because Code § 8.01-675.5 authorizes appeals from 

orders or decrees, as opposed to appeals of isolated issues, the Court may consider any issue

raised by the parties that the circuit court addressed in the May 3 order. 

II. Subject-Matter Jurisdiction and The Power to Render

We turn first to the A.s’ arguments about subject-matter jurisdiction. When issuing an 

order, a court must have subject-matter jurisdiction. “[S]ubject-matter jurisdiction is the 

paramount consideration in assessing whether a court has authority to enter judgment, and a 

judgment will always be void without it.” Watson v. Commonwealth, 297 Va. 347, 352 (2019). 

Subject-matter jurisdiction “cannot be waived or conferred on the court by agreement of the 

parties.” Morrison, 239 Va. at 169-70. “[A] judgment on the merits made without subject 

matter jurisdiction is null and void.” Id. at 170. A court must also have the power to render any 

court’s judgment, order or decree.” In the May 3 order, the circuit court contemplates further 

hearings to determine the best interest of the child. This is far from mere ministerial execution of 

an order. See Rule 1:1(b). Further, the circuit court in its May 12, 2023 order stated that the 

May 3 order involved a question of law that met the four elements required to certify an order as 

interlocutory under Code § 8.01-675.5. For these reasons, we find that the May 3 order is 

interlocutory. 
- 13 -

decision or decree. See Ellis v. Commonwealth, 75 Va. App. 162, 167 (2022). This Court 

reviews questions regarding subject-matter jurisdiction and whether a lower court had the power 

to render a judgment de novo. Gray v. Binder, 294 Va. 268, 275 (2017); Collins v. Shepherd, 

274 Va. 390, 397 (2007).

A. The J&DR court lacked subject-matter jurisdiction to issue the custody order.

We first consider the J&DR court’s subject-matter jurisdiction over the custody order. 

“As courts not of record, [juvenile and domestic relations district] courts are creations of the 

General Assembly.” Parrish v. Fannie Mae, 292 Va. 44, 49 (2016) (citing Va. Const. art. VI,

§ 8; Code § 16.1-69.7). “They are courts of limited jurisdiction and may exercise only such 

subject matter jurisdiction as has been expressly conferred by statute.” Id. Under Code 

§ 20-146.12, Virginia’s J&DR courts have “jurisdiction to make an initial child custody 

determination only if” a case falls within one of four categories. The following four categories 

are “the exclusive jurisdictional basis for making a child custody determination by a court of this 

Commonwealth.” Code § 20-146.12(B). 

A court may only make a custody determination if: 

1. This Commonwealth is the home state of the child on the date of 

the commencement of the proceeding, or was the home state of the 

child within six months before the commencement of the 

proceeding and the child is absent from this Commonwealth but a 

parent or person acting as a parent continues to live in this 

Commonwealth;

2. A court of another state does not have jurisdiction under 

subdivision 1, or a court of the home state of the child has declined 

to exercise jurisdiction on the ground that this Commonwealth is 

the more appropriate forum under § 20-146.18 or § 20-146.19, and 

(i) the child and the child’s parents, or the child and at least one 

parent or a person acting as a parent, have a significant connection 

with this Commonwealth other than mere physical presence and 

(ii) substantial evidence is available in this Commonwealth 

concerning the child’s care, protection, training, and personal 

relationships;
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3. All courts having jurisdiction under subdivision 1 or 2 have 

declined to exercise jurisdiction on the ground that a court of this 

Commonwealth is the more appropriate forum to determine the 

custody of the child under § 20-146.18 or § 20-146.19; or

4. No court of any other state would have jurisdiction under the 

criteria specified in subdivision 1, 2, or 3.

Code § 20-146.12(A). 

None of these requirements is satisfied here. The first category’s requirements are not 

met because the child was less than six months old and had never been to the Commonwealth 

prior to the issuance of the custody order. As to the second category, the J&DR court originally 

determined it had jurisdiction in part because the M.s represented that the child was stateless and 

that a waiver from Afghanistan was imminent. Yet J.M. attended a meeting at which Afghan 

officials and agents of the Red Cross informed United States officials that they had potentially 

identified the child’s Afghan family members and planned to verify if this was a rightful claim. 

The M.s did not disclose this information to the court. The circuit court noted that “[t]here is 

evidence of some extrinsic fraud” here and that the circuit court “did not have all of the 

information known to the [M.s] at the time the [final] order was entered. For example, that there 

was no waiver coming and that the United States decided to surrender or give the child to the 

Afghan government.” The circuit court also stated that “in the end, it was determined that the 

child was an Afghan [c]hild” and the circuit court deemed this “important.” Had all the 

information been before the J&DR court, it could not have found that Afghanistan lacked 

jurisdiction and therefore the court did not have jurisdiction under the second category. See 

Code § 20-146.4(A) (“A court of this Commonwealth shall treat a foreign country as if it were a 

state of the United States . . . .”). Even if Afghanistan had declined jurisdiction, the M.s concede 

that the child did not have significant connections with the Commonwealth, which is sufficient in 

itself to find that the court lacked subject-matter jurisdiction under Code § 20-146.12(A)(2). For 
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the third category, no other states declined jurisdiction on the basis that the Commonwealth was 

the more appropriate forum. Lastly, the catchall fourth category’s requirements are not met 

because Afghanistan had jurisdiction. Because the custody order does not meet the requirements 

of any of the four categories that provide the J&DR court with exclusive jurisdiction to make a 

custody determination, we find the custody order void for lack of subject-matter jurisdiction.18 

Therefore, we reverse the circuit court’s finding that the custody order remains valid.19 

B. The circuit court had subject-matter jurisdiction over the final and interlocutory adoption 

orders but lacked the power to render the orders.

We next evaluate whether the circuit court had authority to issue the interlocutory and 

final adoption orders. The A.s argue that the circuit court’s subject-matter jurisdiction is limited 

to the categories of adoption contained in the adoption code and that the present case does not fit 

any of these categories. The M.s rely on Bonanno v. Quinn, 299 Va. 722 (2021), for the 

proposition that the circuit court had subject-matter jurisdiction over the adoption proceedings. 

The Supreme Court in Bonanno stated that “circuit courts have subject-matter jurisdiction to 

adjudicate adoptions” and the “power to adjudicate adoption petitions under Code §§ 17.1-513 

and 63.2-1201.” Id. at 735. Code § 17.1-513 states that circuit courts “shall have original and 

general jurisdiction of all civil cases.” Code § 63.2-1201 explains what an adoption petition 

must contain, who may file it, and where it can be filed. It does not contain any language 

18 The M.s also argue that Afghanistan’s child custody laws violate fundamental 

principles of human rights and therefore the J&DR court had jurisdiction under Code 

§ 20-146.4(C). That section states that “[a] court of this Commonwealth need not apply this act 

if the child custody law of a foreign country violates fundamental principles of human rights.” 

Code § 20-146.4(C). Nothing in the record demonstrates that Afghanistan’s child custody laws 

violate fundamental principles of human rights as they relate to the child in the present matter.

19 We also note that the custody order is no longer active, as the J&DR court stated that it 

was “a temporary order” that “did not finally dispose of the matter.” The J&DR court further 

explained that the custody order “ended upon entry of the Circuit’s [sic] Court’s assumption of 

jurisdiction . . . by its entry of the interlocutory order of adoption.” (Capitalization normalized). 
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limiting a court’s jurisdiction if these requirements are not met. Given this, and the broad grant 

of jurisdiction of Code § 17.1-513, the Court finds that the circuit court had subject-matter

jurisdiction over the adoption proceeding.

20

Even so, subject-matter jurisdiction does not mean that circuit courts have unfettered 

power to rule on any matter that a party claims to be an adoption. The circuit court must still 

have the power to render a judgment—a requirement related to, but distinct from, subject-matter

jurisdiction. The A.s’ argument is nominally fashioned under the doctrine of subject-matter

jurisdiction. But we understand it as an argument that the circuit court lacked the power to 

render. We interpret it thus because the two doctrines of subject-matter jurisdiction and the 

power to render are interlinked and the power to render may be raised sua sponte.

21

 See Hannah 

v. Commonwealth, 303 Va. 106, 119-20 (2024).

Since the nineteenth century, our Supreme Court has recognized that, even when a court 

has subject-matter jurisdiction, an order is void ab initio if “the character of the judgment was 

not such as the court had the power to render, or because the mode of procedure employed by the 

court was such as it might not lawfully adopt.” Anthony v. Kasey, 83 Va. 338, 340 (1887).

22

 

20 As noted above in relation to the custody order, this Court has jurisdiction to consider 

whether the circuit court had subject-matter jurisdiction to issue the interlocutory adoption order. 

See supra note 15. We also note that the interlocutory adoption order is part of the same matter 

as the final adoption order, and it was issued “subject to” the “final order of adoption” and 

“converted to [the] Final Adoption Order effective December 3, 2020.” See also Morgan v. 

Lynchburg Dep’t of Soc. Servs., No. 0627-21-3, slip op. at 13 (Va. Ct. App. Sept. 13, 2022) 

(finding “interim ruling denying grandmother’s demurrers to” Department of Social Services’

emergency removal petitions for children “merged into the final order”). Thus, it does not 

appear the interlocutory adoption order is still its own freestanding order and instead, it merged 

into the final adoption order. Even still, because the circuit court left the interlocutory adoption 

order in place in its May 3 order, we consider it separately here. 

21 See footnote 23 for a further explanation of the connection between subject-matter 

jurisdiction and the power to render. 

22 Anthony relied upon the reasoning of a United States Supreme Court opinion, Windsor 

v. McVeigh, 93 U.S. 274 (1876). There, the Supreme Court reasoned that:
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“The Constitution of Virginia sets out the general powers of the judiciary, and the Constitution 

grants power to the General Assembly, subject to certain limitations, to determine the 

jurisdiction of the courts of the Commonwealth.” Ellis, 75 Va. App. at 167 (internal citation 

omitted). Accordingly, an order is void ab initio “when a court acts outside of such jurisdiction 

or authority. Id.; see also Yourko v. Yourko, 74 Va. App. 80, 99 (2021) (“The ‘power to render’ 

inquiry requires that Virginia courts must act within the scope of their derived power. Virginia 

state courts derive their power from Virginia’s Constitution, the General Assembly, and grants of 

power from the federal government.”), rev’d on other grounds, 302 Va. 149 (2023). An order 

that is void ab initio is a “complete nullity.” Singh v. Mooney, 261 Va. 48, 52 (2001).

This Court and our Supreme Court have repeatedly applied this doctrine, including as 

recently as last year. See Windset Cap. Corp. v. Debosky, No. 1216-22-4, slip op. at 8-9

(Va. Ct. App. Sept. 12, 2023) (affirming that the lower court did not have the power to render 

default judgment where the judgment was based on a null complaint), cert. granted, No. 230733, 

slip op. at 1 (Va. Mar. 5, 2024); see also Amin v. Cnty. of Henrico, 63 Va. App. 203, 210 (2014) 

(holding that a conviction order was void ab initio because it was based on “an offense that did 

Though the court may possess jurisdiction of a cause, of the 

subject-matter, and of the parties, it is still limited in its modes of 

procedure, and in the extent and character of its judgments. It must 

act judicially in all things, and cannot then transcend the power 

conferred by the law. If, for instance, the action be upon a money 

demand, the court, notwithstanding its complete jurisdiction over 

the subject and parties, has no power to pass judgment of 

imprisonment in the penitentiary upon the defendant. If the action 

be for a libel or personal tort, the court cannot order in the case a 

specific performance of a contract. If the action be for the 

possession of real property, the court is powerless to admit in the 

case the probate of a will . . . . The judgments mentioned, given in 

the cases supposed, would not be merely erroneous: they would be 

absolutely void; because the court in rendering them would 

transcend the limits of its authority in those cases. 

93 U.S. at 282.
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not exist”); Rawls v. Commonwealth, 278 Va. 213, 221 (2009) (holding that a sentence in excess 

of statutory limits was void ab initio because it was outside the court’s power to render); Collins, 

274 Va. at 402-03 (holding that a dismissal order was void ab initio because the circuit court 

utilized a mode of procedure it “could not lawfully adopt”); Evans v. Smyth-Wythe Airport 

Comm’n, 255 Va. 69, 74 (1998) (circuit court “did not have the power to render a judgment 

which permitted a governmental entity to relinquish the power or right of eminent domain”); 

Yourko, 74 Va. App. at 99 (lower court’s order was void ab initio because it was preempted by 

federal law and therefore the court did not have the power to render it).

We agree with the A.s that the adoption of the child does not fit any of the five categories

of adoption authorized in Code §§ 63.2-1221 through -1244. The five categories of adoption are 

agency, parental placement, stepparent, close relative, and adult adoption. T.S.G. v. B.A.S., 52 

Va. App. 583, 591 n.5 (2008); Code §§ 63.2-1221 to -1244. Stepparent, close relative, and adult 

adoptions are obviously not applicable to the present matter. The circuit court’s interlocutory 

and final adoption orders cite to the agency adoption statutory provisions. And the circuit court 

did refer the adoption to a child-placing agency, the Department of Social Services, as required 

by Code § 63.2-1208, and appointed a guardian ad litem. Both recommended that the child be 

adopted by the M.s. But, again, all this occurred before the child was living with the M.s or 

present in the United States and neither the Department of Social Services nor the guardian ad 

litem ever met with the child prior to the issuance of the orders. Thus, the statutory requirements 

of an agency adoption were not met as the child was not “properly committed or entrusted to [the 

agency’s] care.” Code § 63.2-1221. Neither was this a parental-placement adoption, as the child 

was not placed with the M.s by a “birth parent, legal guardian, or adoptive parent.” Code 

§ 63.2-1230. We find that these procedural errors are so outside the scope of the adoption code 
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that the circuit court lacked the power to render the adoption orders, rendering both adoption 

orders void ab initio. 

C. Subject-matter jurisdiction and power to render are essential despite Code § 63.2-1216’s 

language and the statute’s general purpose of favoring the finality of adoptions.

We must now evaluate the role of Code § 63.2-1216 in the A.s’ collateral attack on this 

improper adoption. Of course, our determination that the circuit court lacked the power to render 

the final adoption order is of little import if the A.s are barred from bringing this claim by Code 

§ 63.2-1216. The statute states: 

After the expiration of six months from the date of entry of any 

final order of adoption from which no appeal has been taken to the 

Court of Appeals, the validity thereof shall not be subject to attack 

in any proceedings, collateral or direct, for any reason, including 

but not limited to fraud, duress, failure to give any required notice, 

failure of any procedural requirement, or lack of jurisdiction over 

any person, and such order shall be final for all purposes.

Code § 63.2-1216. The legislative intent of Code § 63.2-1216 is clear: to favor the finality of 

adoptions. This Court has stated that “[t]he General Assembly made the policy choice to favor 

finality, recognizing that repeatedly subjecting a child to multiple changes in or even mere 

challenges to who his legal parents are has the potential to cause significant harm to the child.” 

Nelson v. Middlesex Dep’t of Soc. Servs., 69 Va. App. 496, 509 (2018). Additionally, “[t]he 

policy of stability in a family relationship, particularly when a young minor is involved, 

outweighs the possible loss to a person whose rights are cut off through fraud and ignorance.” 

F.E. v. G.F.M., 35 Va. App. 648, 661 (2001) (quoting McKinney v. Ivey, 698 S.W.2d 506, 507

(Ark. 1985)). 

The combination of the text of Code § 63.2-1216 and the unique nature of subject-matter

jurisdiction and the power to render leads us to conclude that Code § 63.2-1216 does not bar 

collateral attacks challenging a lack of subject-matter jurisdiction or power to render. Subjectmatter jurisdiction is essential and necessary to every act taken by a court. See Watson, 297 Va. 
- 20 -

at 352; Morrison, 239 Va. at 170. Subject-matter jurisdiction is so central to a court’s decisionmaking power that acts undertaken without it are void ab initio. Hannah, 303 Va. at 119-20. In 

fact, our Supreme Court

has recognized five circumstances that may give rise to judgments 

which are void ab initio: when “(1) [the judgment] was procured 

by fraud, (2) the court lacked subject matter jurisdiction, (3) the 

court lacked jurisdiction over the parties, (4) the judgment is of a 

character that the court lacked power to render, or (5) the court 

adopted an unlawful procedure.” 

Id. (alteration in original) (emphasis added) (quoting Watson, 297 Va. at 350). Thus, objections 

to issues of subject-matter jurisdiction or power to render “may be raised by any party in the case

at any point during a valid direct or collateral proceeding where the voidness of the order is 

properly at issue, including by a court for the first time on appeal.” Id. at 120 (emphasis added) 

(citing Bonanno, 299 Va. at 736-37). We therefore conclude that the final adoption order here 

may be attacked after six months for lack of subject-matter jurisdiction.

Even if the power to render is better understood as a type of jurisdiction,23 the final 

adoption order is void ab initio for lacking it. The power to render, like subject-matter

23 Virginia courts have described the power to render in two different ways, in both 

instances it is interlinked with subject-matter jurisdiction. At times, courts have treated the 

power to render as a related but distinct concept from jurisdiction, and thus from subject-matter 

jurisdiction. See Yourko, 74 Va. App. at 97 (“[T]he circuit court had subject matter jurisdiction 

to issue the challenged orders . . . . However, in examining whether the orders are void, Virginia 

law looks beyond jurisdiction and also directs that an order is void if the circuit court was 

without power to render the order.” (emphasis added)); Singh, 261 Va. at 51-52 (“An order is 

void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the 

parties, [or] if the character of the order is such that the court had no power to render it . . . .”); 

Anthony, 83 Va. at 340 (“Though the court may possess jurisdiction of a cause, of the subjectmatter and of the parties, it is still limited in its modes of procedure and in the extent and 

character of its judgments.” (quoting Windsor, 93 U.S. at 282)). But at other times, we have 

conversely treated the power to render as a type of jurisdiction. Our Supreme Court in Farant 

Inv. Corp. v. Francis, 138 Va. 417 (1924), explained that:

There are, indeed, four essential requisites to confer upon a court 

“active jurisdiction,” which may be thus classed, (1) potential 

jurisdiction, (2) territorial jurisdiction, (3) actual jurisdiction of the 
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jurisdiction, is essential to all orders. See Hannah, 303 Va. at 119-20. This conclusion is also 

consistent with the text of Code § 63.2-1216. We find it significant that the General Assembly 

affirmatively included “jurisdiction over any person,” instead of merely stating “jurisdiction.” 

Code § 63.2-1216 (emphasis added). Because challenges based on a lack of subject-matter 

jurisdiction, or the power to render, can be raised anytime, it is unsurprising that the General 

Assembly would not intend for Code § 63.2-1216 to prevent them. The unique quality of 

subject-matter jurisdiction and the power to render distinguishes them from the type of claims 

listed in Code § 63.2-1216. 

Therefore, despite the broad language of Code § 63.2-1216 and the statutory purpose of 

promoting the finality of adoptions, the statute is inapplicable to the final order, as the order was 

invalid from the outset.24 We affirm the circuit court’s ruling that the final adoption order is void 

subject matter where the proceeding is in rem, and also of the 

proper parties where the proceeding is personal, and (4) the other 

conditions of fact must exist which are demanded by the unwritten 

or statute law as the pre-requisites of the authority of the court to 

proceed to judgment or decree. 

Id. at 427-28; see also Richardson v. Commonwealth, 67 Va. App. 436, 442 n.2 (2017) 

(“[Jurisdiction] embraces several concepts including subject matter jurisdiction[,] . . . territorial 

jurisdiction[,] . . . notice jurisdiction[,] . . . and the other conditions of fact [that] must exist 

which are demanded by the unwritten or statute law as the prerequisites of the authority of the 

court to proceed to judgment or decree.” (first, third, fifth, seventh, and eighth alterations in 

original) (quoting Porter v. Commonwealth, 276 Va. 203, 228 (2008))). 

24 To the extent that our interpretation of Code § 63.2-1216 is lacking, federal preemption 

principles counsel the same result. A conflict between state and federal law is of particular 

concern when it involves the United States’ diplomatic relationships with other governments. 

See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (“[A]t some point an exercise of 

state power that touches on foreign relations must yield to the National Government’s policy, 

given the ‘concern for uniformity in this country’s dealings with foreign nations’ that animated 

the Constitution’s allocation of the foreign relations power to the National Government.”

(quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964))). “To permit 

[states to operate in foreign relations] would be to sanction a dangerous invasion of Federal 

authority.” United States v. Pink, 315 U.S. 203, 233 (1942). In addition to “conflict 

preemption” where particular foreign policy decisions conflict with the operation of a state 

statute, the United States Supreme Court has recognized a dormant federal foreign affairs power, 
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ab initio under the right result for the wrong reason doctrine. See Perry v. Commonwealth, 280 

Va. 572, 579 (2010) (“[I]t is the settled rule that how[ever] erroneous . . . may be the reasons of 

the court for its judgment upon the face of the judgment itself, if the judgment be right, it will not 

be disturbed on account of the reasons.” (alterations in original) (quoting Schultz v. Schultz, 51 

Va. (10 Gratt.) 358, 384 (1853))). Because the final adoption order is void ab initio and the 

statute is inapplicable, we need not decide if the A.s are de facto parents with due process rights 

that were violated, which would allow them to overcome the statute’s time limitations on yet 

another ground. See Commonwealth v. Swann, 290 Va. 194, 196 (2015) (“The doctrine of 

judicial restraint dictates that we decided cases ‘“on the best and narrowest grounds available.”’”

(quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010))). 

CONCLUSION

Because the circuit court lacked the power to render the interlocutory and final adoption 

orders and the J&DR court lacked subject-matter jurisdiction to issue the custody order, we find 

all the orders here void ab initio. We affirm the circuit court’s decision voiding the final 

adoption order but reverse its decision to leave the interlocutory adoption order and custody 

order in place. We direct the circuit court to dismiss the adoption proceedings and conduct a 

which is a type of federal field preemption. Zschernig v. Miller, 389 U.S. 429, 440 (1968)

(invalidating a state action because of the federal government’s inherent authority over foreign 

affairs where the state law had “a direct impact upon foreign relations and may well [have] 

adversely affected the powers of the central government to deal with those problems”). There 

was significant evidence presented below that the United States took direct actions in an exercise

of federal executive authority by turning over custody of a child found on Afghan soil, during a 

military engagement, to Afghanistan, and that strict application of Code § 63.2-1216 would 

conflict with this decision. In the absence of direct action, the dormant foreign affairs doctrine 

would nevertheless seem to block the statute from preventing the reopening of an adoption of a 

foreign-born child, while the child was on foreign soil, in an adoption that occurred without the 

consent (or knowledge) of the foreign country or any agency therein. See Zschernig, 389 U.S. at 

440 (explaining that preemption principles apply where state action has more than an “incidental 

or indirect effect” on national foreign relations (quoting Clark v. Allen, 331 U.S. 503, 517 

(1947))). But we need not decide this case on such grounds, given the power to render rationale 

contained herein.
- 23 -

hearing on the existing custody petition filed by the A.s, which remains pending before the 

circuit court. The M.s may file custody or adoption petitions at their discretion.

Affirmed in part, reversed in part, and remanded.