Introduction
In October of 2014, the United States Supreme Court lifted a stay on a Fourth Circuit ruling that made same-sex marriage legal in Virginia. Suddenly, same-sex couples across Virginia found themselves with the right to marry, and took advantage of it quickly.Shortly after this ruling, I wrote a blog post laying out some practical considerations for same-sex couples in Virginia in the "new world" of legal marriage. I pointed out that while the new ruling meant that same-sex couples can get married, it did not retroactively make same-sex couples married, and as such there were many legalities a same-sex couple needed to go through to take full advantage of their new legal rights. One issue I did not discuss, however, was children, and a new ruling from the Virginia Court of Appeals makes clear that I should have.
Just yesterday, the Court of Appeals issued its published opinion in the case of Hawkins v. Grese. The case involved two women who had been in a relationship from 2004 to 2014. In 2007, the women decided to have a child, and so Grese gave birth to a child conceived through artificial insemination. Due to Virginia's marriage and adoption laws at the time, Hawkins was unable to adopt the child, nor was she named on the child's birth certificate.
In 2014, before the change in the marriage law went into effect, the couple broke up - but their break up was amicable, and they shared custody of their child.
However, in 2016, they came into conflict, and Grese began withholding the child from Hawkins. After protracted custody and visitation litigation, the Court of Appeals found that Hawkins is not a parent of the child, and subsequently Grese has all the protections of a parent against Hawkins in the custody and visitation context (see my post on third-party custody and visitation for an explanation of what that means for Hawkins). As a result, the Court of Appeals found that Hawkins had not overcome the "parental presumption" and awarded sole custody to Grese (note that the appeal did not address the question of visitation). The Court of Appeals further included in its order this little nugget: "we hold that where custody disputes are concerned, the term 'parent' is a relationship to a child only through either biological procreation or legal adoption."
So What Does This Mean?
The main thing it means is that if you weren't married at the time you and your partner had a child, you are not a legal parent of that child unless you've adopted that child or are the child's biological parent. For a same-sex couple, this means that if you had a child any time before 2014 and it was your partner's biological child, you must adopt that child in order to have legal parental rights. This is true for an opposite-sex couple as well.
If you don't adopt the child, it doesn't matter that you were not allowed to get married at the time - you don't retroactively get treated as though you were married, so you must adopt in order to have those parental rights even if you are married now.
What About for Same-Sex Parents Who Were Married When the Child Was Conceived/Born?
I included a little nugget in my introduction that should scare even married same-sex parents (and, heck, married opposite-sex parents who used a sperm or egg donor to conceive) - the part about "parent" only if the child is biologically yours or legally adopted. I think this statement was more broad than the Court of Appeals meant it to be and that this only applies to a couple that was not married at the time the child was born. This is because Virginia has a statutory scheme creating what's called "presumed" parents - wherein if you are married at the time you give birth, your spouse is automatically considered the other parent unless proven otherwise, and put on the birth certificate. This rule originally only applied to husbands, but has now been extended to same-sex couples by another US Supreme Court case.
Moreover, Virginia's statutory scheme about artificial insemination specifically states that "the husband of the gestational mother of a child is the child's father." While the language is obviously gendered still, it is pretty clear, to me at least, from current case law that this rule would be extended to same-sex spouses (although I'd note for same-sex male couples that the Virginia law regarding surrogacy has its own complications for same-sex male couples). As a result, I believe that if you are married at the time the child is conceived and born, you will still be considered the child's other parent, notwithstanding the implications of the Court of Appeals' loose wording. However, this somewhat loose language of the Court of Appeals might make you want to consider adopting the child anyways.
What Should We Do About This?
Well, the answer is clear - if you have any question at all in your same-sex relationship of whether or not you will be considered your child's parent in the unfortunate event your relationship ends, you should adopt your child immediately. If you are married, the process is pretty simple (you can see my post on step-parent adoptions here), but even if you aren't, it's not too complicated. Obviously, having an attorney assisting you can help.
Conclusion
If you have a child with your same-sex spouse or partner, the Virginia Court of Appeals decision yesterday in Hawkins v. Grese should give you some pause to make sure the law considers you that child's parent. If you aren't, or even if you're unsure, it's time to adopt that child to protect your parental rights. If you need help figuring out if you are a child's legal parent, or need help adopting your child with your same-sex spouse or partner (or even your opposite-sex spouse or partner), feel free to review our initial consult policy (link above or here) and to call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
