Donna Dougherty Law P.C.

Non-biological parents gain ground in custody cases

Biological parenthood often carries a lot of weight during custody decisions in the state of Virginia, which can introduce challenges when same-sex couples with children decide to end their marriages. The matter becomes particularly complicated when the non-biological parent is not legally recognized as a parent.

Nevertheless, court decisions in recent cases, such as the custody battle between Lauren and Karen Poole, have advanced the rights of non-biological parents to have access to the children they have loved and raised as their own. The Virginian-Pilot reports that when Lauren and Karen married, they both planned to have children. Karen was the first to become pregnant, and the couple, alongside the sperm donor, drew up and signed an agreement that not only identified Lauren as a parent but also freed the father from responsibility for the child.

Unfortunately, Virginia had not yet legalized same-sex marriage when the baby was born, so Lauren’s name was not included on the child’s birth certificate when the couple decided to part ways. Generally, this might have given Karen a strong claim to sole custody because Lauren was neither biologically related to the child nor legally recognized as a parent. However, Lauren argued that she had fulfilled her parental responsibilities in full. She alleged that she was a participant in the birth, a caretaker for the baby and a breadwinner for the family, as well. Thus, the judge moved away from the traditional interpretation of the parent as either birth mother or father, awarding Lauren legal recognition as one of the child’s parents.

The definition of a parent under Virginia law encompasses an array of factors and can be applied to a number of individuals depending on the circumstances of a given situation. Most strictly, “parent” is construed as referring to either the biological or the adoptive parent of the child in question. However, the term can also describe a legally authorized guardian or a foster parent. Finally, it can refer to an individual who provides a home for the child and is legally responsible for him or her but is neither an adoptive nor a biological parent. This last category may include stepparents and relatives.

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