Now That Same-Sex Couples Can Marry in Virginia, What Does That Mean For Such Couples Being Able to Adopt?
I. Married same-sex couples now can legally adopt in Virginia based on the currently existing Virginia adoption statutes.
There are two basic routes:
- Adopting a Child Together. Virginia’s adoption statute permits either a single unmarried parent or a married couple to adopt. Now that same-sex marriage is permitted in Virginia (as of October 6, 2014), a married same-sex couple simultaneously can adopt a child together as a married couple. The couple must have a home study performed. The adoption can be done as an agency or parental placement adoption. The child could be in Virginia or another state. The age of the child does not matter. This includes adopting children out of the foster care system. Even non-resident married same-sex couples now can adopt a child in Virginia together.
- Step-Parent Adoption. A married same-sex couple now can do a step-parent adoption if one spouse already is the legal parent of a child and the other spouse is not. This is essentially the same as what a second parent adoption bill would have accomplished had it ever passed – however second parent adoption laws as a general rule do not necessarily require that the two parents be married. If a couple is not married then the current step-parent adoption law does not apply.
II. The Details of a Step-Parent Adoption in Virginia.
- So long as the legal parent is the sole legal parent of the child (in other words there is not another biological or legal parent whose consent must be obtained) then a step-parent adoption is a relatively easy process that normally does not require a hearing or the appointment of a guardian ad litem. So long as everything is in order as set out in the Petition, the Court typically goes straight to a Final Order of Adoption.
- The Court has the discretion to not go straight to a Final Order of Adoption but to enter an Order of Reference. The Order of Reference orders the local Department of Social Services (“DSS”) to visit the family and report to the Court. DSS typically charges a fee for this service. The Court often will require the Order of Reference if the non-legal parent has not been involved in the child’s life for very long or if the couple has not been in a committed relationship for a very long time.
- The non-legal parent cannot be convicted of a crime that would bar him or her from adopting.
- The Court will need satisfactory evidence that the legal parent is the sole legal parent and has the authority to make his or her spouse a step-parent (or second parent). For example, such evidence might be: that the sperm donor signed a release or that the legal parent has an adoption order or evidence that the child’s other biological parent is deceased.
- The effect of a step-parent adoption is to make the non-legal parent a completely equal legal parent (as if the child was biological his or her own) which includes placing the step-parent’s name on the child’s birth certificate along with the original legal parent’s name.
III. Getting Married Does Not Automatically Make The Non-Legal Parent a Parent.
The mere act of a same-sex couple getting married does not mean that the non-legal parent automatically becomes a legal parent to his or her spouse’s child. To become a legal parent, the non-legal parent must go through the step-parent adoption process.
IV. A Joint Custody Order is Not the Same as a Step-Parent Adoption Order.
Some same-sex couples, whether married or unmarried, have a joint custody order in place for their children. This is not the same as an adoption. A joint custody order makes the non-legal parent a joint legal custodian. However, a legal custodian is not the same as a legal parent. A legal parent has his or her name placed on the child’s birth certificate and has other rights and privileges that a legal custodian does not have.
V. Unmarried Couples or Individuals Cannot Adopt Together.
Under current Virginia law – two people not married to each other cannot adopt together. If a second parent adoption bill was passed in Virginia in the future then such adoptions might be possible. However current law in Virginia is that one single unmarried person can adopt or a married couple can adopt. Depending on the situation, they may be able to obtain a joint custody order.