If a man and woman marry in Virginia and later decide to have children, both spouses become legal parents. However, the Huffington Post notes that current divorce and custody laws have yet to catch up to the legal recognition of gay marriage. This can create a problem when neither spouse is biologically the parent of the child and the same-sex spouses make the decision to divorce. Further complicating the matter may be that one spouse is the biological parent and the other spouse failed to legally adopt the child.
State courts have previously challenged gay parental privileges related to medical directives and official guardianship, which is why the National Center for Lesbian Rights urges same-sex couples to take extra measures to establish their legal rights. In most cases, this means a traditional stepparent adoption or second-parent adoption by the non-biological parent.
For example, a lesbian couple might use a sperm donor and then designate one spouse to carry the child. If the non-biological parent legally adopts the child, both parents are eligible to make decisions about the child’s well-being, even after a divorce. If neither parent is a biological parent, both spouses should file for adoption, regardless of when the child was born, who is on the birth certificate and when the couple was married. Alternatively, gay parents may apply for a parentage judgment. This establishes parental rights for inheritance and Social Security, but it does not affect custody and visitation rights. Those must be established separately.
Even though same-sex marriages now enjoy the same rights as heterosexual marriages, the statues are still new. Therefore, obtaining legal documentation via adoption or official judgment is the best way to ensure that custody rights are upheld in a court of law.