SAME-SEX CUSTODY AND VISITATION ISSUES IN VIRGINIA & MARYLAND
The following is a detailed analysis of how the current laws in Virginia & Maryland handle same sex custody cases.
As same-sex relationships gain greater cultural acceptance and legal rights, Maryland & Virginia domestic relations courts will increasingly encounter issues regarding same-sex custody. and visitation of a child with at least one same-sex or lesbian parent. In a state that still has a constitutional amendment banning same-sex marriage on the books, a same-sex or lesbian parent may have concerns about litigating child custody or visitation. The purpose of this article is to address those concerns by providing a modern survey of Virginia custodial and visitation jurisprudence when one of the parents is either same-sex or lesbian and the court has to determine what is in the best interest of the child. From that survey, this article will describe the general positive trend in how the courts have treated such parents but will then highlight the areas where potential difficulties for same-sex or lesbian parents remain.
The SRIS Law Group represents clients who need help with child custody cases. We represent all clients regardless of their sexual orientation. The right to be a parent is paramount. Our law firm and our lawyers in Virginia & Maryland take the position that all parties should be treated fairly and equally with dignity and respect. Our law firm supports the rights of clients who are engaged in same-sex relationships and we will gladly bring those beliefs before the courts of Virginia and Maryland.
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A Positive Indication: Doe v. Doe, 222 Va. 736 (1981)
The rights of same sex parents in VA started off on a positive step. In Doe v. Doe, the Virginia Supreme Court considered whether to grant a contested adoption petition for a seven-year-old boy filed by his biological father and stepmother over the objection of the boy’s mother who was cohabitating with a lesbian partner in Ohio. The mother and father had been married but separated shortly after August 1972 while they were both living in Ohio. The boy lived with his mother in Ohio from that date until February 1976, when his father and stepmother removed him to Virginia against the mother’s consent. Although the mother did not appear to oppose the father having custody of the boy, she opposed the adoption, which would have terminated her parental rights. Doe v. Doe, 222 Va.at 739-40. Despite her opposition, the trial court granted the petition for adoption.
The Supreme Court agreed with the mother and overturned the trial court’s decision. The Court stressed that the child was unequivocally “a well-adjusted boy, above average in intelligence, creative, happy, and sensitive.” Id. at 745. The Court disagreed with the trial court’s finding that the mother’s “lesbian relationship would have a detrimental effect on [the boy] and would result in serious emotional and mental harm to the child.” Id. at 748. With regard to the mother, the Court observed that “[a]lthough there was testimony that her relationship with the woman with whom she lives is unorthodox, the testimony is also that [the mother] is an exceptionally well-educated, stable, responsible, and sensitive individually.” Id. at 745. Finally, the Court stated that while the mother’s “unnatural lifestyle” was an appropriate factor to consider in determining the boy’s best interests, it did not outweigh the substantial evidence that “she [was] a devoted mother and, in every other respect, a fit parent.” Id. at 748. The Court expressly declined to hold that that “every lesbian mother or homosexual father is per se an unfit parent.”
At is essence, the Doe decision stood for the proposition that although exposing a child to a homosexual relationship is an adverse factor to consider in determining a child’s best interest, this factor can be outweighed by showing that the same sex or lesbian parent is a nurturing and responsible parent.
A Step Back: Roe v. Roe, 228 Va. 722 (1985)
Roe v. Roe stalled any forward momentum on the issue of same sex and lesbian parental rights created by the Doe decision. In Roe v. Roe, the Virginia Supreme Court considered whether it was in the bests of an approximately ten-year-old girl to divest her father of legal and primary physical custody on the basis of him exposing her to an ongoing same sex relationship. At the time of the decision, the father had had primary physical of the daughter since October 1979 due in large part to the mother’s serious illness at the time. However, in 1983, the mother, after recovering from her illness, filed a suit seeking sole custody of their daughter on the basis that she had learned that the father was cohabitating with another man. The trial court decided to give the parties joint legal custody and allowed the daughter to remain with the father during the school year so long as he did not share a bedroom with another man while his daughter was there. Roe, 228 Va. at 725.
The Supreme Court, however, overturned the trial court. The Supreme Court gave the mother sole custody and ruled that even for visitation to resume with the father in his home his “living arrangements” had to change. Id. at 728. The Court justified its opinion by citing the deleterious effects of exposing a child to such an “immoral and illicit relationship.” The Court not only expressly stated that the daughter would certainly be stigmatized but that the relationship itself may negatively impact her development. Id. at 728. Further, the Court cited VA’s anti-sodomy law in further support of its determination that such a relationship violated social mores. Id. All this led the Court to conclude bluntly that “the father’s continuous exposure of the child to his immoral and illicit relationship renders him an unfit and improper custodian as a matter of law.”
To distinguish Roe from Doe, which had expressly stated that homosexual parents were not per se unfit, the Court reasoned that Doe, which addressed whether the mother’s parental rights would be terminated, involved a different issue than the situation at hand—which parent was to have day to day custody. By making this distrinction, the Court effectively stated that a parent cohabitating in an overt homosexual relationship is always unfit to have day-to-day custody of a child.
Eroding Roe’s Precedent: Bottoms v. Bottoms, 249 Va. 410 (1995) through the Present
Since Roe, VA court decisions have slowly eroded its holding that parents in same-sex relationships are generally unfit to have day-to-day custody of their children.
In Bottoms v. Bottoms, 249 Va. 410 (1995), the Supreme Court upheld a trial court’s decision awarding custody of a two-year-old daughter to her grandmother rather than to her twenty-three-year-old mother, who was in a same-sex relationship. The Court in part based its decision on the child’s exposure to a same-sex relationship for the reasons as stated in Roe. Bottoms, 249 Va. at 420. However, unlike in Roe, the Court cited additional justifications for its decisions, such as the fact that the mother had hit the child once, that the mother would leave the house for days unannounced, that the mother misused government assistance, that the mother had numerous illicit relationships with men, that the mother had slept with others in the common room as the child, that the child was using explicit language, that the child had spent most of her time with the grandmother, and that the guardian ad litem recommended custody be with the grandmother. Id. at 419-420. Although the mother’s sexual orientation still was as substantial consideration in Bottoms, the decision represented a departure from Roe in that the Court relied on a number of other material factors beyond the same-sex living situation in coming to its conclusion.
In Piatt v. Piatt, 27 Va. App. 426 (1998), the Court of Appeals upheld a trial court’s decision to give primary physical custody of a child to the father instead of the mother, who had been involved in two lesbian relationships since the separation from the father. Notably, the Court determined that the trial court had not found that the homosexual nature of the mother’s relationships and emphasized that sexual standards in custody cases apply to both heterosexual and homosexual relationships. Piatt, 27 Va. App. at 433-34, fns.2, 3. Piatt is notable because unlike in Roe and Bottoms the Court of Appeals did not choose make the express point that an ongoing homosexual relationship was a negative factor in determining custody.
In A.O.V. v. J.R.V, Record No. 0219-06-4, 2007 Va. App. LEXIS 64 (Va. Ct. App. February 27, 2007), the Court of Appeals upheld the trial court’s ruling awarding the parties’ joint legal custody of the minor and granting the father itation rights with the children so long as any romantic partner did not spend the night when the children were present and so long as the father refrained from displays of affection in front of the children. At the time, the father was living with a same-sex partner. On appeal, the mother contended that Roe mandated that she should be granted sole custody, while the father contended that the trial court’s restrictions on visitation should be vacated. The Court of Appeals rejected the mother’s claim for several reasons. First, the Court expressed serious doubts as to the constitutionality of the anti-sodomy statute, which was used to support the decisions in Roe and Bottoms. A.O.V., *12. Second, the Court concluded that the trial court had found that no actual harm, including social stigma, had befallen the children by virtue of the father’s same-sex relationship. Id. at *12-*15. Finally, in contrast to the finding in Roe, the Court found the father to be a fit parent. Id. at *15. However, the Court ruled against the father and maintained the prohibition on overnight guests and displays of affection.
In Sirney v. Sirney, Record No. 0754-07-4, 2007 Va. App. LEXIS 473 (December 27, 2007), the Court of Appeals upheld the trial court’s ruling that as a condition of overnight visitation, her LGBT life partner could not spend the night. The Court rejected the mother’s challenge to this requirement on Equal Protection grounds by stating that the decision was based on the children’s discomfort with the life partner rather than on the homosexual relationship itself.
In a notable circuit court case Welsh v. Wise Co. Dept. of Soc. Services, 84 Va. Cir. 245 (January 27, 2012), the Wise County Circuit Court emphatically stated in a Cust. dispute that the petitioners’ homosexual relationship was not a negative factor in its decision. The Court rejected the Respondent’s arguments that the petitioners’ conduct was criminalized under Virginia law and the child was exposed to an immoral setting.
Finally, although not directly tied to LGBT Cust. or visitation issues, there have been several recent legal developments that subvert some of the major rationales used by Virginia courts to consider exposure to LGBT relationships as a negative factor in determining Cust.. First, the General Assembly, effective in 2014, finally edited the old anti-sodomy statute by removing the provision prohibiting a person to “carnally know any male or female person by the anus or by or with the mouth,” thereby removing any argument that such conduct is illegal. Va. Code Ann. § 18.2-361. Second, on July 28, 2014, the Fourth Circuit struck down VA’s LGBT marriage ban as being unconstitutional. In the decision, the Court “found extremely persuasive” the argument that children are not harmed by being raised by LGBT or lesbian parents. Bostic v. Rainey, No. 14-1167, 2014 U.S. App. LEXIS 14298 at *65 (July 28, 2014). This factual finding may be adopted by state courts sitting in Virginia.
The Next Frontier
From Doe to Bostic, Virginia courts have tended to show less discrimination toward LGBT or lesbian parents. Even with LGBT marriage still being illegal in Virginia, the pressure on Virginia courts to purge any remaining bias will only increase with time. Given the evolving legal landscape, LGBT or lesbian parents in VA should have much less misgivings about litigating issues regarding their children’s Cust. or visitation.
These parents, however, should still be prepared to deal with several remaining issues as a result of their sexual orientation. First, although society is becoming more accepting of homosexuality, the Roe court’s reasoning that a child may face social derision for living in a home with LGBT caretakers has not been overturned and may still be relevant in certain cases. The basic standard for Cust. cases—what’s in the best interest of the child—remains firmly in place and in some VA jurisdictions, a homosexual couple may still face enough condemnation from a surrounding community that a judge could conclude that a child may receive a portion of that condemnation.
Second, until LGBT marriage is legalized in Virginia, a LGBT or lesbian person will likely have issues getting a court’s blessing in exposing his or her child to a live-in LGBT relationship. As emphasized in Brown v. Brown, 218 Va. 196 (1977), VA courts have been concerned with exposing children to immoral relationships, and many courts still take the view that exposing children to cohabitation outside of marriage is damaging. Presently, Virginia LGBT couples are at a severe disadvantage given this precept because even the most committed, long-lasting couple cannot enter into a marriage recognized by the Commonwealth.
Finally, even if the remaining vestiges of VA’s case law against homosexual parents are purged, there will still remain statutory hurdles to LGBT couples interested in parenting children, such as in the assisted conception statutes. Either the General Assembly will take it upon itself to resolve these issues seamlessly as homosexual rights are expanded or individuals will have to engage in time-consuming litigation in court to rectify these matters.
LGBT and lesbian parents have certainly faced biases and challenges in dealing with Virginia courts in the past. However, as the evolving legal landscape shows, there is presently much more reasons for LGBT and lesbian parents to be optimistic. The rationale in Roe that seemed to conclude that all publicly homosexual parents were unfit will continue to be eroded in the future, leaving Virginia courts to focus on what really matters—the best interests of its children.
If you need the help of a same-sex custody lawyer in Virginia in Fairfax, City of Fairfax, Prince William (Manassas), Fauquier (Warrenton), Loudoun (Leesburg), Caroline, Stafford, Spotsylvania (Fredericksburg), Chesterfield, Henrico, Arlington, Richmond, Alexandria, Warren (Front Royal), Clarke, Shenandoah, King George, call our law firm immediately for help and speak to a lawyer about your options. If you need the help of a same sex custody lawyer in Maryland in Montgomery County, Charles County (Waldorf), Rockville, Bethesda, Howard County, Ellicott City or Frederick, do not hesitate to call us for a consultation. B