Some LGBTQ couples who want to start a family opt to have one partner be the biological, gestational parent with the help of a donor. In this situation, the biological parent would, of course, be considered the child’s legal parent. However, being the same-sex partner of the biological parent does not automatically grant parental rights over the child.
Consider an unmarried man and woman who have a child together, then decide to get married. There would be no legal question of who receives parental rights, and nothing would change in that regard after the couple is married.
This would not be the case for two long-term female partners who decide to get married after one partner gives birth to a child they intend to raise together. The non-gestational parent would not have been listed on the original birth certificate, meaning she would not have parental rights unless she legally adopts her spouse’s child.
Why step-parent adoption matters for LGBTQ families
For both heterosexual and LGBTQ married couples, presumptive parental rights are given to the spouse of the birth mother, per a 2018 Fairfax County Circuit Court ruling that considers any child conceived during a civil union or marriage — even through assisted conception — to be “of the parties.” (Appel v Celia, Feb. 8, 2018).
LGBTQ partners who are unmarried at the time of their child’s birth may need to pursue a step-parent adoption case after they enter into a civil union or marriage establish legal parenthood for the non-gestational parent. Doing so ensures both partners have equal rights in their child’s life and decisions.
As with any couple who enters their marriage with children, step-parent adoption (sometimes called “second parent adoption” for LGBTQ couples) allows the biological parent’s spouse to legally participate in the child’s welfare, such as making schooling, medical, and religious decisions. It also allows the non-biological parent to cover the child under their health insurance and give them inheritance rights.
Finally, if the marriage ends or the biological parent dies, the adoptive parent will retain the right to seek custody of the child.
Step-parent adoption process in Virginia
Before filing an uncontested step-parent adoption case for a child under the age of 18, the child’s living, identifiable biological parents must consent. If you and your partner used an anonymous donor, it is likely that they had already waived their parental rights when they donated at the clinic. If a known donor was used, you will likely need to get their consent prior to filing.
Once you have received parental consent, here are the steps to filing your case:
- Draft, sign, and notarize a Petition for Adoption. You and your partner will typically co-petition for adoption. This Petition details the circumstances of your step-parent adoption case, including proof of marriage, proof of consent from the child’s other natural parent (such as a known donor or surrogate), and basic information about the child.
- Have the child’s other natural parent sign and notarize a Natural Parent Affidavit, if applicable. This document confirms that the other biological parent (if known) is aware of the Petition and consents to it. If your child’s other parent was an anonymous donor and there is no ascertainable way to determine their identity or obtain their consent, you must state this in writing to the Court.
- Draft, sign, and notarize a Final Order of Adoption. This order should include the same information from your Petition, and have a blank space for a judge to sign and date.
- Complete the Virginia Civil Cover Sheet (Form CC-1416). This form must be filed with any civil action in Virginia.
- File the above four documents in person with your local Circuit Court, including any relevant exhibits. In addition to the previously listed documents, you must also provide a copy of your current marriage certificate and the child’s birth certificate.
- Obtain Form VS-21 from the Court Clerk. After receiving your signed Final Order of Adoption, you must obtain, complete, and file Form VS-21 in person. This form finalizes the adoption and allows you to obtain an updated birth certificate for the child, listing you as a legal parent.
Get help with your LGBTQ step-parent adoption case
If you and your same-sex spouse are beginning the process of filing a step-parent adoption case in Virginia, My Legal Case Coach is here to help. Take our 30-second quiz to discover which of our case form packets is best for your circumstances.
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