The Supreme Court of the United States issued a landmark decision on June 26, 2015 when Obergefell v. Hodges, 135 S. Ct. 2584 (2015) allowed for same-sex marriage in all fifty states. What this opinion did not address, however, was parentage of children born into those same-sex marriages or legal rights of non-birth parents to children born into those marriages through assisted conception.
Under Virginia law, a marriage creates a presumption of parentage. Virginia Code § 20-158 states that the gestational mother or “birth mother,” and the spouse of a birth mother, are the two parents of a child resulting from assisted conception. This allows for a birth mother and her wife to both be listed on their child’s birth certificate when the Department of Vital Statistics records the child’s information.
However, the presumption of parentage does not necessarily convey legal rights over a child. Presumption of parentage is not conclusive and the spouse of a birth mother, if they are not a biological parent, must adopt the minor child in order for both parents to have their legal rights over their child recognized in all fifty states. [This is not the case for heterosexual parents, where the father’s paternity can be confirmed through DNA testing, thereby satisfying Virginia’s standard of clear and convincing evidence to establish paternity.]
Article IV, Section 1 of the United States Constitution, more commonly known as the Full Faith and Credit Clause, directs each state within the United States to uphold the “public acts, records, and judicial proceedings of every other state.” While Virginia Code § 20-158 creates a presumption of parentage based on marriage, other states may differ on that point. An adoption decree is irrefutable proof of parentage when rendered by a court of competent jurisdiction, and constitutes a judgment, thereby satisfying the Full Faith and Credit Clause.
In other words, the non-birth mother member of a married same sex couple may use adoption to ensure recognition as a parent in all fifty states.
Under Virginia Code § 63.2-1241, a spouse of a birth or adoptive parent may legally adopt that parent’s minor child(ren). To facilitate such a “stepparent adoption,” both the birth and non-birth parent need to file a petition for adoption in the circuit court of the county or city where they reside, or the county or city where the child resides. This petition must be a joint petition, meaning both parents must consent to the request for adoption, and the petition shall also indicate whether the petitioners (parents) seek to change the name of the child. Under § 63.2-1241, the court may approve the proposed adoption without referring the matter to the local director of social services for investigation (more commonly known as a home study) if:
(i) the birth parent or parent by adoption, other than the birth parent or parent by adoption joining in the petition for adoption, is deceased; (ii) the birth parent or parent by adoption, other than the birth parent or parent by adoption joining in the petition for adoption, consents to the adoption in writing and under oath; (iii) the acknowledged, adjudicated, presumed, or putative father denies paternity of the child; (iv) the birth mother swears under oath and in writing that the identity of the father is not reasonably ascertainable; (v) the child is the result of surrogacy and the birth parent, other than the birth parent joining in the petition, consents to the adoption in writing; (vi) the parent by adoption joining in the petition was not married at the time the child was adopted; or (vii) the child is 14 years of age or older and has lived in the home of the person desiring to adopt the child for at least five years.
The court has a wide range of discretion, as it does in all family law proceedings, and if the court determines that there should be an investigation before a final order of adoption is entered, the court shall refer the matter to the local director for a home study, and the results of the home study shall be completed within a designated time.
If you are a member of a same-sex couple looking to solidify your legal recognition as a parent, be sure to consult with an experienced family law attorney to review your options. The family law attorneys at Livesay & Myers, P.C. are experienced with adoptions in jurisdictions across Northern Virginia. Contact us to schedule a consultation today.