Virginia Same Sex Custody and Visitation Cases

Posted on Jan 13, 2020 by Katie Carter

When it comes to custody cases where same sex relationships are an issue, things get complicated really, really quickly, mostly because there are all sorts of different types and categories of relationships that fall under this heading.

Not only that, but same sex relationships and how they’re treated, especially as it relates to custody and visitation determinations, is currently in a period of flux throughout the entire United States. It’s difficult to write to address these particular kinds of cases because so much is constantly changing – and just one new case could be a landmark decision that changes everything. That could happen in other areas of law, too, but it’s less likely; so much less has been said and done as it relates to custody and visitation decisions.

All sorts of issues come into play in these types of cases, too – like reproductive technology (and, goodness gracious, do THOSE case present complicated issues quickly!).

Today, I’m going to talk about a number of issues in custody and visitation cases where same sex relationships are an issue. I’ll cover both cases where the parties are (and have always been) same sex partners, and also cases where one party has left a heterosexual relationship for a homosexual one. We’ll talk a little bit about reproductive technology, too, with the caveat that this category of law can change quickly (both in terms of the mindsets of judges, Guardians ad litem, and custody evaluators and in terms of specific statutory and judicial precedents) so, if you’re facing a case like this, you’ll want to talk to a lawyer one-on-one about the specific issues raised in your case as well as any potential outcomes.

We will talk 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.

I’ll just come right out and say it: Virginia is conservative. And, in Virginia, as in pretty much everywhere else, the law is slow to change. Though I think we’re definitely moving towards kinder, more tolerant policies when it comes to same sex custody and visitation cases.

What has the law been historically?

Maybe to understand where we’re going, it’s best to at least discuss where we’ve come from. The “old” standard in custody and visitation cases in same sex relationships was Bottoms v. Virginia, which was decided way, way back in 1995. In Bottoms, the court found that sodomy – conduct inherent in same sex relationships – was illegal, and so a mom engaged in that kind of activity was engaged in illegal activity. Not only that, but the court worried that the child would suffer from “social condemnation” from living in a household with lesbians.

In 2008, in Miller-Jenkins v. Miller Jenkins, a similar issue presented itself. Though it’s more positive towards recognition of a same sex relationship, the court’s decision was based instead on procedural rules rather than actual support of the substance of the case.

Of course, in the wake of the Supreme Court’s landmark Lawrence v. Texas case in 2003, sodomy is no longer illegal, so the rationale applied in Bottoms no longer applies. The stigma, too, is lessening all the time, so the whole “social condemnation” thing is more speculative now than before.

What’s happening in same sex custody and visitation cases now?

Well, since the Supreme Court’s Obergefell case, gay marriage is legal throughout the United States, which has definitely led (understandably) to an increase in gay divorce cases, which translates to more gay custody cases, too.

In a sense, though this kind of recognition for same sex marriages is relatively new, these types of cases – the types where both parents are and have always been engaged in a homosexual relationship – are easier.

Custody and Visitation Cases Where BOTH Parents are Gay

When you have a custody and visitation case between two gay parents, it’s harder for an anti-gay stereotype to enter into the equation. There’s not a heterosexual parent there, also petitioning for custody. You just have two parents – whether they be two men or two women – so, really, all the court can do is fall back on those “best interests of the child” standards and apply them.

In these cases, the court’s preference (if there even is one) for a heterosexual parent is largely irrelevant. It’s not within the court’s power to, say, put the child up for adoption into a heterosexual home just because the court doesn’t like the fact that the parents are gay. Parental rights can’t be terminated on this basis, either, and, anyway, that’s not the kind of case we’re talking about here. We’re talking about a pure custody, visitation, and child support case (which may or may not be part of a larger divorce action) between two parents, who just so happen to be gay. A decision regarding custody would have to be made, and, in the sense that both parents are already admittedly gay, there’s not much room for the nasty stereotypes and prejudices of yesteryear to come into play.  (This is far, far more likely to come up in a case where one of the parents was previously in a heterosexual relationship, so one parent is gay and one parent is not — which we will discuss on Wednesday.)

Reproductive Technology

Where it really gets tricky is where there are more complicated reproductive technology issues. It probably comes as no surprise that these issues come up – and frequently become even bigger issues than the matter of the gay relationship itself – oftener in same sex cases.

The court has to define what a parent is, especially when there may be no actual biological ties between one (or both!) parents and the child in question. Advances in reproductive medicine have meant that all sorts of things are possible – the adoption of a donor embryo, or the use of a woman’s own egg, fertilized by donor sperm.

We see lots of gay couples do all sorts of things – like gestate one woman’s egg in the other woman’s body, or even alternate who carries donor embryos so that each partner has carried one of their children. These kinds of ties matter to the court.

Legal ties matter as well, like who was listed on the birth certificate.

Is a parent someone who has a biological tie to a child, or could it be someone who, though no biologically related, played a fundamental role in the upbringing of the child? Does parenthood require formal adoption? It’s unclear.

What is clear, though, is that gay couples face these issues way more often than heterosexual couples.

What can be done to protect the non-biological gay parent’s rights to the children?

The easiest, most logical way to protect non-biological gay parent’s rights would be to have the parents marry. A child born into a marriage is presumed to be the child of the parties to the marriage.

A formal step parent adoption is another option, but it is pretty clear that one of these steps should probably be taken in the event that both parents want to be equally recognized as having a role in the life of the child, especially if any future custody disputes arise.

This is a problem that heterosexual couples also face: when things are good, it seems unnecessary (or even inflammatory) to pursue various legal protections. After all, who is thinking about divorce? But, when things start to go south, it is important to have these kinds of legal details ironed out. It can help parties avoid huge legal issues later on.

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 757-703-1386.