For LGBTQ+ parents, establishing legal parentage is critical to securing parental rights and ensuring children have access to support from both parents. Without legal recognition, a non-biological or non-adoptive parent may be treated as a legal stranger with no custodial or decision-making authority. Legal parentage provides certainty in custody, medical decisions, inheritance, and child support obligations—protections that are especially crucial for LGBTQ+ families.
The Evolution of Legal Recognition
The legal landscape for LGBTQ+ parentage has evolved dramatically. Before marriage equality, many states explicitly denied recognition of same-sex relationships, making it difficult for two mothers or two fathers to both be recognized as legal parents. Even after Obergefell, gaps remain in parentage recognition.
Legal parentage can arise through several pathways:
- Biological parentage – genetic relatedness or giving birth.
- Adoptive parentage – formal court adoption process.
- Presumed parentage – typically through marriage to a birth parent.
- Intended parentage – designated parents through assisted reproduction or surrogacy.
For LGBTQ+ couples, whose family formation often involves non-traditional methods, understanding these distinctions is crucial to securing legal recognition.
Continuing Challenges in Virginia and Beyond
Despite progress, LGBTQ+ families continue to face unique challenges. The Hawkins v. Grese case in Virginia (2018) starkly demonstrates this reality. When an unmarried lesbian couple separated, only the biological mother was deemed a “parent,” and her partner—who had jointly raised the child from birth—was considered a legal stranger with no rights. The Virginia Court of Appeals ruled that because the non-biological mother had neither given birth nor adopted the child, she was not legally a parent.
Virginia does not recognize de facto parent status absent statutory or adoptive ties. The court sympathized that removing a mother figure was harmful to the child but stated that “the law of the Commonwealth left it little option.” This case highlights the critical importance of formalizing parentage through available legal means.
Pathways to Secure Legal Parentage
Marital Presumption.
Since marriage equality, most states apply the marital presumption to same-sex couples. In Virginia, the law now provides that “the spouse of the gestational mother” is the child’s other parent, regardless of gender. This gender-neutral language, updated in 2019, means a birth mother’s wife is presumed to be a parent just as a husband would be.
However, this presumption may not provide absolute protection. Birth certificates listing both spouses as parents are considered “administrative records” that may not carry the same legal weight across jurisdictions as court orders. For this reason, even married couples should consider securing court-ordered adoptions.
Adoption as the Gold Standard.
Adoption remains the most secure path to establish parentage for non-biological parents. In Virginia, a married spouse can adopt their partner’s child through stepparent adoption—a streamlined process that typically does not require a home study when the child already has only one legal parent (e.g., when conceived with a donor).
Virginia law permits “any single unmarried adult or married couple” to petition to adopt, with no explicit prohibition against LGBTQ+ individuals or couples. Since Obergefell, same-sex spouses have equal access to stepparent adoption procedures. Once granted, an adoption creates a parent-child relationship “for all purposes,” including custody rights and support obligations.
For unmarried couples, second-parent adoption (where one partner adopts without terminating the other’s rights) is not explicitly provided for by Virginia statute, creating a gap for unmarried LGBTQ+ families. Approximately 20 states explicitly allow unmarried couples to petition for adoption of the same child, but Virginia’s law has historically required the adoptive petitioner to be either a single person or part of a married couple.
Assisted Reproductive Technology Considerations
Many LGBTQ+ couples rely on assisted reproductive technology (ART), which raises specific legal issues. Virginia’s “Status of Children of Assisted Conception” law (Va. Code Ann. § 20-156 et seq.) provides that a donor is not a legal parent of a resulting child. However, the Bruce v. Boardwine case (2015) demonstrated the importance of following proper medical procedures—a home insemination using a known donor was not protected under the statute because it did not involve “medical technology.”
For couples using known donors or surrogates, comprehensive written agreements are essential. Virginia permits surrogacy under a detailed statutory scheme, requiring court approval of surrogacy contracts. The law now applies neutrally regardless of gender or sexual orientation.
Interstate Recognition and Conflicts
Family law becomes particularly complex when multiple states are involved. The Miller-Jenkins custody saga of the 2000s demonstrates this challenge. A lesbian couple entered a civil union in Vermont and had a child; when they separated, one partner moved to Virginia (then hostile to same-sex unions) and sought exclusive custody. Virginia courts initially declined to recognize the other mother’s parental status, creating direct conflict with Vermont’s orders.
Ultimately, Virginia courts determined that under the federal Parental Kidnapping Prevention Act and Full Faith and Credit Clause, Vermont’s custody determinations must be respected—a principle reinforced by the U.S. Supreme Court in V.L. v. E.L. (2016), which unanimously held that adoption orders from one state must be recognized nationwide.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Uniform Interstate Family Support Act (UIFSA), which Virginia has adopted, provide frameworks for resolving interstate custody and support issues. These uniform laws give priority to the child’s “home state” and prevent conflicting orders from multiple jurisdictions.
Child Support Considerations
Establishing legal parentage is a prerequisite for creating child support obligations. A court cannot generally order someone to pay child support unless that person is a legal parent by birth, adoption or adjudication. In Virginia, once both partners are recognized as legal parents, each can be held responsible for child support using the same guidelines that apply to all families.
When parents live in different states, UIFSA provides mechanisms for establishing, enforcing, and modifying support across state lines. Virginia’s long-arm statute (Va. Code Ann. § 20-88.35) outlines various bases for reaching an out-of-state parent for support purposes.
Recent Developments and Best Practices
Recent Supreme Court decisions have reinforced LGBTQ+ parental rights. Pavan v. Smith (2017) struck down an Arkansas law that prevented married lesbian couples from having both names on a child’s birth certificate, holding that the “constellation of benefits” linked to marriage must be provided on equal terms.
Since these decisions, many states have updated their parentage laws to be more inclusive. The Uniform Parentage Act of 2017 provides gender-neutral presumptions, allows for voluntary acknowledgments of parentage regardless of gender, and includes de facto parent provisions. While Virginia has not adopted this updated law, it did amend its assisted conception statute in 2019 to be gender neutral.
Practical Recommendations for Legal Professionals
Attorneys should advise LGBTQ+ clients to:
- Confirm parental status early. Don’t assume being on a birth certificate is sufficient protection
- Document intent. Draft clear agreements for known donors or surrogates
- Follow medical procedures for ART. Use licensed physicians for donor insemination or IVF
- Secure court orders. Pursue adoption or parentage orders even if married
- Address interstate issues proactively. Register orders in new states when relocating
- Maintain comprehensive documentation. Keep copies of all vital documents accessible
The Long Road Ahead
While the legal landscape for LGBTQ+ parentage has improved significantly, gaps remain. By understanding available legal protections and taking proactive steps to formalize parent-child relationships, LGBTQ+ families can achieve stability and security. Legal professionals play a crucial role in guiding clients through these complex issues and advocating for continued legal reforms that protect all families.
