Virginia Same Sex Custody and Visitation Cases: Part One

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.

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.

For more information, or to speak with one of our attorneys about your custody case, give our office a call at 757-425-5200.