Why should married, same-sex couples go the legal-adoption route?
As more and more same-sex couples tie the knot in Virginia, they should familiarize themselves with various aspects of the laws as it relates to their family.
As of right now in the Commonwealth of Virginia, specifically with same-sex couples, just because one spouse is the biological parent doesn’t automatically make the nonbiological parent a legal parent, even though both people can have their names on the birth certificate.
If anything should happen with the marriage (death, divorce, biological-parent intervention), the birth certificate serves as an administrative document which can be legally challenged.
That’s why in Virginia, it’s still highly recommended the best course of action for a nonbiological parent in a same-sex marriage is to adopt their child to protect their legal rights as a parent. The Virginia Court of Appeals recently held in Hawkins v. Grese (VLW018-7-052) that the term “parent” refers only to a relationship with a child through either biology or legal adoption.
Here’s how it works:
In same-sex marriages, if one of the spouses, either male or female, is the biological parent, then the nonbiological parent becomes the “stepparent” for legal adoption purposes only. The adoption process begins in the Circuit Court. It is extremely important in adoptions for same-sex, married couples to go through the proper channels to either receive a sperm or egg donation through a bona fide organization that provides couples with a signed legal donor agreement waiving all legal rights of the donor himself or herself. If the donor is someone the couple knows, it is important the donor execute a legal donor agreement. These documents are necessary to overcome the biological presumption of the biological “mother” or “father” who donated his or her egg/sperm.
For those couples who have children together, using a donor prior to their marriage they should secure a final order of adoption for the nonbiological parent. Securing the final order of adoption will ensure their rights as the child’s parents are protected. In scenarios such as this, the nonbiological parent shouldn’t rely on the legal recognition of their same-sex marriage to automatically give them acknowledgment as their child’s parent as a far as the law is concerned.
Securing this adoption will protect you, your children and your family.
For those same-sex couples that do not plan to marry but raise children together, adoption is not an available option. Again, in Hawkins v. Grese, the Virginia Court of Appeals held that the nonbiological parent in 10-year, same-sex relationship, in which one became pregnant through artificial insemination in 2007, could not be considered a parent. The key issue, in this case, was the parties never married. In a situation such as this, it is important the parties enter into a custody /visitation agreement to later protect the nonmarried, nonbiological parent.
If you and your spouse want to find out more about adopting as a same-sex couple with one of the spouses being the biological parent, you should consult with a respected, trusted and experienced family law attorney. The family law attorneys at Mahoney & Richmond, PLLC will help the adoption process run smoothly.