Determining who is considered a “parent” in a child custody case between two same-sex partners can be challenging. When same-sex couples are not married, it is not clear whether a child will remain in the custody of one of the parties. A parent’s right to autonomy in child rearing is a fundamental right protected by the 14th Amendment, meaning that a parent has the right to raise a child. The court’s interference with this can only happen upon a finding of a compelling state interest. If you are filing for joint legal custody and have shared physical custody, both parties have to be a person with a legitimate interest.

Recent Virginia Case: Parent of Child in Same-Sex Relationship was Not Considered a Parent for Joint Legal Custody Determination   

In a 2018 Virginia case, the court held that a woman who had acted as a parent of a child for years was not considered a parent for joint legal custody purposes. Two women were in a same-sex relationship, but never married. In 2007, one party became pregnant and had a son. The son was raised by both women in the partnership and lived with them both until the parties separated in 2014. The biological mother petitioned the court to prevent the other partner from seeing her son, despite having raised him for years as her own.

Court Determined That the Non-Biological Parent Was Not Considered a Parent   

The court determined that the non-biological parent was not a statutorily defined “parent” for purposes of determining custody.  The Virginia Code defines a parent as, “someone contributing genetic material through biological insemination or other means of legal adoption.” Here, the non-biological mother had not adopted the child nor contributed biological material to the child’s birth. Therefore, she was not considered a parent for custody purposes. In Virginia, based on the Virginia Code’s definition of parent, if a couple is not married, the non-biological/non-adoptive party is not considered a parent.

Note: our attorneys know to preserve this “non-parent’s” rights by filing as an “intended party” or a party with a legitimate interest.

The attorneys at Smith Strong, PLC have experience in navigating through custody cases and can help you in custody disputes and can advise noncustodial parents of the proper steps to take to ensure the court considers their child’s best interests.

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg