By Alexander T. Lewis of Duff & Kronfeld, P.C. posted in Family Law on Monday, August 13, 2018.
Virginia now recognizes same-sex marriage and all laws pertaining to custody of children apply to these couples. However, the law is very different when dealing custody issues between couples that are not married.
In its recent decision, the Virginia Court of Appeals in Hawkins v. Grese ruled that even though both parties of a former same-sex couple raised the child at issue, that only Grese was the child’s parent as the biological parent for purposes of a custody determination. While Hawkins played the role of a parent in the child’s life until the break up, the Court determined that she was not a parent for the purposes of custody as she was not the biological parent and had not adopted the child. As such, in Virginia, Hawkins was deemed to be only an “interested party” for purposes of petitioning for custody of the child. Because of this, Hawkins (like any other interested party) was required to rebut the parental presumption in favor of Grese having custody. The Court determined that even though Hawkins has a legitimate interest in raising the child, that simply because it would benefit the child is insufficient justification to rebut the presumption of custody in favor or Grese. The Court found that this finding was constitutional as it did not “discriminate between same-sex and opposite-sex couples” as an unmarried “non-biological/non-adoptive parent is not a parent irrespective of gender or sexual orientation.”
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