Donna Dougherty Law P.C.

Navigating the legal complexities of LGBTQ parental rights

Though same-sex marriage has been legal in Virginia for more than two years, the quest for equal treatment in court continues. Legal inconsistencies are particularly evident for same-sex couples both state- and nation-wide who are seeking divorce and child visitation and custody rights.

The Guardian reports that issues of custody and visitation rights are particularly complicated for gay and lesbian parents who were previously in heterosexual relationships. Divorce courts in the United States have a history of awarding custody to the straight parent—even, at times, when such decisions are clearly not in the best interests of the child. Homosexual parents may face a long, hard struggle to receive equitable access to their children.

Plenty of scientific studies have indicated little difference between children raised by same-sex couples and those growing up in heterosexual households. In other words, the sexuality of the parents has little to do with the well-being of the child. Nevertheless, some judges may consider parents’ sexuality as a significant factor in determining frequency of visitation and identifying the primary caregiver.

Among same-sex couples, second-parent adoption is one strategy for ensuring that both spouses retain parental rights in the event of a divorce, although this approach is not permitted in all states. The Human Rights Campaign offers several alternatives to second-parent adoption. For example, drawing up a custody agreement allows couples to identify what role each party will play not only in the event of a breakup but also throughout the relationship. Such arrangements are particularly feasible during amicable breakups.

Another option is a co-parenting agreement, which identifies joint responsibilities and custody arrangements for the child. This agreement indicates that both spouses have a shared commitment to the child, though only one party is identified as the legal parent. Regardless of the arrangement, it is crucial for the non-legal parent to be able to demonstrate before the court his or her clear parental involvement with the child over a long period of time.

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