Happy Pride Month!
June is Pride Month, a time to celebrate the diversity, resilience, and strength of LGBTQ+ individuals, couples, and families. It is also a meaningful opportunity to address practical legal questions that LGBTQ+ families in Virginia often face – whether they are planning to grow their family or navigate a family law dispute. Here are five frequent questions we hear:
Is the adoption process different for LGBTQ+ parents?
The short answer is that it depends. Virginia law permits any single person or married couple residing in the state to petition to adopt. Generally, married same-sex couples have the same right to foster and adopt as married different-sex couples. However, despite Obergefell v. Hodges protecting the rights of same-sex couples to marry (and therefore the same rights to adopt children), same-sex couples in some states may still face foster care and adoption laws, policies, or practices that permit agencies to discriminate against them. Virginia is one of several states that permit child welfare agencies to discriminate against potential parents based on moral or religious objections.
What options do I have to get a court judgment recognizing my parent-child relationship?
If you are not a presumed parent to a child under Virginia law (such as through marriage), there are two primary paths to legal recognition: adoption or court order of parentage. Adoption comes in several forms – confirmatory, stepparent and co-parent adoption among them.
Virginia also recognizes parentage through voluntary acknowledgment of parentage (typically signed at the hospital after birth) or a court order (often available for a child born through assisted reproduction or surrogacy).
What happens if my partner and I get divorced after adopting our child?
Once an adoption is finalized, adoptive parents have the same legal rights and responsibilities as biological parents in Virginia – and divorce does not change that. If you and your partner separate after adopting a child, a Virginia court will typically address issues of custody and child support the same way as it would for any other parents. Importantly, a divorce does not undo a valid adoption. Both adoptive parents remain the child’s legal parents and continue to have parental rights and obligations unless a court orders otherwise in very limited circumstances.
If I already have a child and then marry my partner, does marriage automatically make them a legal parent to my child?
No. Marriage does not automatically make a spouse a child’s legal parent in Virginia. To establish a legal parent-child relationship, they must go through the stepparent adoption process or another legal process, depending on the circumstances.
If my spouse and I had a child through assisted reproduction and I am not biologically related to the child, do I have fewer parenting rights?
If you have been legally recognized as the child’s parent through adoption or a court order, you have the same legal rights as the biological parent in Virginia. A Virginia court would determine custody based on the child’s best interests, not the child’s biological relationship with each parent. However, if you have not been legally recognized as the child’s parent, the situation becomes more complex and the outcome can vary. If you are married and consented to having a child using assisted reproduction, Virginia will likely recognize you as a legal parent despite not having a court order showing legal parentage. However, having a court order adds an extra layer of protection for the non-biological parent in case of divorce or a custody dispute. Virginia’s assisted conception statute does not extinguish the sperm or egg donor’s potential parental rights, and only adoption fully resolves that vulnerability for the non-biological parent. Consulting an attorney and taking proactive steps to ensure you have legal parentage are recommended to protect your rights before any potential disputes arise.
We hope that everyone has a safe and happy Pride Month! We are proud to be an LGBTQ+ friendly family law firm near Fairfax VA. We offer consultations on pre-nuptial agreements, adoption orders, post-nuptial agreements, separation agreements, collaborative divorce, divorce mediation, and litigation. Contact us for an initial consultation by visiting www.cgglawyers.com or calling (703) 934-1480.
