Since Virginia began to recognize same-sex marriage on October 6, 2014, couples have begun to enjoy the rights and responsibilities associated with marriage, either because they were already legally married in another jurisdiction or because they married in Virginia following the state’s recognition of same-sex marriage. However, while marriage confers many benefits, it may not automatically confer one important thing: a legal relationship with one’s children. Same-sex couples raising children in Virginia should take additional steps in order to ensure that both spouses are legal parents to their children.
Obtaining a court order establishing legal parentage is important to protect both parents and children. A legally established parent can remain the guardian of a child upon the other parent’s death or incapacity, and can ensure that the child is not put into the custody of some other relative or the state. Similarly, a legal parent may make health care or other decisions for children in an emergency, and children may inherit from a legal parent upon that parent’s death. Children may receive such benefits from a legal parent as health insurance, Social Security benefits, child support, and upon divorce or separation, a legal parent has standing to get custody and/or visitation of children. These are only some of the numerous other protections tied to a parent’s “legal” status. Even a partner who may have legal custody of children (through a joint custody order, for example) may not be a full legal parent.
For same-sex couples in Virginia who were not married when their children were born or adopted, are most likely in a situation where only one parent is the “legal” parent. This is because only married couples or single individuals could adopt in Virginia. Same-sex “second parent” adoptions, which would have allowed one partner to adopt the other partner’s child without terminating the second partner’s parental rights, had not occurred in Virginia. As a result—although many couples planned for, raised, and in every respect were both parents to their children—only one partner was generally deemed the child’s legal parent.
Virginia’s new recognition of same-sex marriage does not change this situation for couples who had children prior to marriage recognition. Just as a stepparent in a heterosexual marriage does not automatically become a legal parent of a spouse’s children upon marriage, same-sex couples will not both become legal parents by virtue of getting married.
However, the “marital presumption” may mean the spouse is considered the presumptive legal parent of the child if a spouse gave birth to or adopted a child, and the parties were married at the time of the child’s birth or adoption. This is true even if the married couple consists of two women, for example, and so one spouse is clearly not biologically related to the child. For couples who were legally married in another state before they had their children, or were legally married in Virginia (after October 6, 2014) before they had their children, the marital presumption should apply. However, it should be noted that Virginia’s marital presumption law still only mentions a husband and wife, and therefore same-sex married couples in Virginia should take additional steps beyond this presumption to ensure that both spouses are considered the legal parents of their children, in Virginia and every other jurisdiction.
The future does look different for same-sex couples who are married now or wish to marry, and who intend to have children in the future. Same-sex married couples in Virginia (or legally elsewhere) may now jointly adopt and serve as foster parents in the Commonwealth. Additionally, couples who already have children may obtain a second parent adoption pursuant to their marriage, so that both parents are the legal parents of their children. These adoptions are relatively easy and can be obtained quickly. After the adoption, couples generally may update their children’s birth certificates to include both spouses as their parents.
Although marriage may not be a silver bullet in terms of parenting, it does open up options for same-sex couples raising children in the Commonwealth. Same-sex couples raising children in Virginia should contact a family law attorney to discuss how they can ensure legal parentage of their children.
Michele Zavos is a partner in the Zavos Juncker Law Group, PLLC, which practices family law in the District of Columbia, Maryland, and Virginia. Cody M. Perkins is an associate and legal fellow with the firm.