Virginia Same Sex Custody and Visitation Cases: Part Two

Posted on Jan 15, 2020 by Katie Carter

On Monday, we talked about issues that gay parents face in custody and visitation cases, with specific emphasis on couples who have always been gay. I don’t say “always” to ignite any kind of nature or nurture debate, but merely to illustrate that there are some differences between gay partners who had children together and divorced, heterosexual couples where one parent engages in a subsequent same sex relationship. Though these people, too, have likely “always” been gay (and I certainly mean no disrespect!), I am trying to draw a distinction between those people who had their own biological children with a different partner before their gay relationship began.

In the first type of case, the question is whether both parents are considered parents for the purposes of sharing a custody and visitation arrangement, mostly because some sort of reproductive technology was more than likely utilized. In this second type of case, the issues are less about giving the gay step parent any rights to the child and more about maintaining access to the children for the biological parent who is now engaged in a same sex relationship. It’s important to make that distinction, because it does make a difference in custody and visitation cases.

The Bottoms case, which we discussed on Monday, is one of this second type of case. In 1995, back when Bottoms was decided, the court found that the lesbian mother shouldn’t have custody of the children because she was engaged in illegal conduct (specifically, sodomy) which rendered her unfit. Not only that, but the court worried that the children would suffer from “social condemnation” from living in a lesbian household.

To me, 1995 seems practically like the Stone Ages, especially as it relates to custody and visitation. So much has changed! While there’s still the potential for prejudice (I mean, turn on the news) on the basis of sexual orientation, there’s no question that things are better than they used to be. That doesn’t mean that there isn’t a long ways to go until same sex couples receive the same protection under the laws of the Commonwealth as heterosexual couples, but – there’s definitely improvement.

Though being a same sex couple who has had children by assisted reproductive technology has its difficulties, it’s also difficult to be a mom from a formerly heterosexual relationship who is now in a same sex relationship. That fact will almost certainly be raised in court by your child’s father and his attorney, in an attempt to showcase to the court that, on the basis of your sexual orientation you are somehow less fit to have custody.

Is that argument effective – that, based on sexual orientation, a parent is somehow more or less fit to have custody?

Custody cases are always going to be based on the best interests of the child factors, and how they interrelate. Opposing counsel will almost certainly use your sexual orientation as a reason why you are somehow unfit, but he or she can only do so in the context of the custody factors.

How should I structure my case so that my sexual orientation doesn’t take center stage? I’m a good mom and I’ve always been a good mom.

For your part, you and your attorney should make the case about everything BUT your sexual orientation. Obviously, there are lots of qualities about you as a mom that do make you a fit and proper custodian for the children, and that’s where your focus should be. You may want to also bring in expert witnesses or others to testify – potentially the children’s therapists, or even an expert who can testify that being raised in a gay household doesn’t “turn” children gay. It seems like this is common knowledge, but, in court, it’s always about the evidence and what you can prove – so even for things that seem basic to you or me, it can be helpful to have an expert there to get that specific evidence introduced.

In general, we’ve found that our cases like this have not suffered because of a particular party’s sexual orientation. In general, trial court judges are much more interested in serving the children’s best interests than they are in stereotyping or judging based off of whether or not a mother (or a father) is in a same sex relationship post divorce.

How do I show that I’m serving the child’s best interests?

In this way, your case is likely no different from any other mom’s case. We’ll want to show that you’re focused on the needs of the child, that you can adapt to them as the child grows and matures, that your physical and mental condition means that you’re in good condition to physically care for a child, and that you’re willing and able to promote the child’s relationship with his or her other parent.

Coparenting – the ability to work with your child’s other parent to promote their best interests – increasingly factors into custody decisions. It’s not just that you support the child’s relationship with their other parent, it’s that you cooperate in general with respect to a wide-ranging set of issues when it comes to the children. The court will be looking at your tone of voice in communications, the ease with which you make the children available to the other parent, your flexibility when it comes to difficult scheduling situations, and whether or not you share information from school and extracurricular activities, among other things. It wouldn’t be a bad idea – regardless of whether the court has ordered it – for you to complete a coparenting course before your custody case. It’s kind of like driver improvement; it always reflects well on you for having done it, and it can also help you learn the verbiage that the court is looking for when it hears these types of cases.

I don’t think that a judge would rule out a parent as a custodian simply because of their sexual orientation.

Attitudes are changing. Gay households are more visible and less unusual, and, even in Virginia, even in some of the more conservative parts of the Commonwealth, we’re seeing that reflected in the law.

There haven’t been any landmark Virginia Supreme Court decisions on this particular issue yet, but, for the most part, we’re finding that the lower courts are being much more egalitarian than ever.

Still, custody cases aren’t easy, and you’ll be best served in a case with complicated issues with an experienced and trial tested Virginia custody attorney on your side. If you need more information about same sex marriages or custody cases, consider attending our custody seminar, Custody Bootcamp for Moms or scheduling a confidential consultation today with one of our licensed Virginia custody attorneys by calling our office at 757-425-5200.