State Laws and Legislation

Virginia Custody and Visitation Law

Virginia courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents

Virginia law states: “In determining custody, the court shall give primary consideration to the best interests of the child. …

“In determining best interests of a child for purposes of determining custody or visitation arrangements … the court shall consider the following: 1) The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs; 2) The age and physical and mental condition of each parent; 3) The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 4) The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members; 5) The role that each parent has played and will play in the future in the upbringing and care of the child; 6) The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 7) The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 8) The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 9) Any history of family abuse. … If the court finds such a history, the court may disregard the factors in subdivision 6; and 10) Such other factors as the court deems necessary and proper to the determination.”

In a 1998 case, Piatt v. Piatt, the Virginia Court of Appeals affirmed a trial court’s ruling to award joint custody to a mother and father, with primary physical custody going to the father. The mother, who had two different “experimental” relationships with women after she and her husband separated, argued that the trial judge weighed that evidence unfairly compared to evidence of her husband’s relationship with another woman. The Court of Appeals reviewed the record and reiterated that although there was “no credible documentation of damage to children” of gay parents, the mother’s life was currently in turmoil while the father offered a more stable environment for the child. The court noted testimony from the trial record that stated that the mother’s turmoil arose from her struggling with sexual orientation, the rift that had caused with her father and her trouble deciding “how her life should go forward.” In the dissenting opinion, the judge stated that he would have reversed and remanded the trial court’s determination, partly because even though the mother had been “struggling” with her sexual identity, there was no evidence that this “‘struggle’ affected her ability to parent the child.”

In a 1995 case, Bottoms v. Bottoms, the child’s mother and maternal grandmother were involved in a custody dispute. The trial court awarded custody to the grandmother, with the mother having restricted visitation rights. The appeals court decided it was in the child’s best interest to be in the mother’s custody. The state Supreme Court disagreed with the appellate court, stating: “There is proof in this case that the child has been harmed, at this young age, by the conditions under which he lives when with the mother for any extended period.” Additionally, the high court pointed out that same-sex sexual activity was a felony in Virginia; “Thus, that conduct is another important consideration in determining custody.” The high court delineated several factors to be weighed in determining unfitness, including the “parent’s misconduct that affects the child, neglect of the child and a demonstrated unwillingness and inability to promote the emotional and physical well-being of the child [and] … the nature of the home environment and moral climate in which the child is to be raised.”

In a 1991 case, Carrico v. Blevins, the Court of Appeals upheld a trial court’s decision to restrict both parents from having overnight visitors of the opposite sex while their children were present. As part of its reasoning, this court stated: “Here, there was evidence that the father had strong religious and moral views against the child being in the home with the mother and her boyfriend. Although we do not hold that the moral values of the custodial parent are necessarily the deciding factor, we do hold that they may be considered in imposing visitation restraints.”

In a 1985 case, Roe v. Roe, the state Supreme Court reversed a trial court’s joint custody award to the mother and gay father, reasoning, “A parent who carries on an active homosexual relationship in the same residence as the child … is not in the child’s best interests and … an award of custody to such a parent constitutes an abuse of judicial discretion.” Despite the court finding no evidence of any ill effects on the child resulting from her father’s same-sex relationship, the court found that because the father “openly admitted that he was living in an active homosexual relationship,” he was “an unfit and improper custodian as a matter of law.”

In a 1981 case, Doe v. Doe, a father was awarded custody of the child with the mother being allowed visitation. After a few years, the father and his new wife petitioned to adopt the child. The trial court permitted the adoption and severed all parental rights of the mother, Jane Doe, saying, “The open lesbian relationship now engaged in by Jane Doe, and which relationship she says will continue, would have a definite detrimental effect on [the child] if he is permitted to visit and live with his mother, especially during his formative years, and that his being exposed to this relationship would result in serious emotional and mental harm to this child, and that his best interest will be promoted by the adoption.” The state Supreme Court disagreed, noting that there was no evidence that the child has been “scarred or adversely affected by the conduct of either parent.” The high court went on to state: “We decline to hold that every lesbian mother or homosexual father is per se an unfit parent. However, this is not to be construed as approving, condoning or sanctioning such unorthodox conduct, even in the slightest degree. Jane’s unnatural lifestyle was a proper factor to have been considered in determining her fitness as a mother and what was in the best interest of the child.”

Custody and Visitation for Same-Sex Co-Parents
In August 2004 a county circuit judge ruled that Virginia would keep jurisdiction in a custody case between two same-sex partners. The couple had been in a civil union in Vermont and had been ruled legal co-parents by a Vermont court. When the relationship ended in 2003, the biological mother moved to Virginia with the couple’s daughter and, later that year, returned to Vermont to dissolve their civil union. In June 2004, the Vermont Family Court awarded the former partner visitation rights in Vermont and Virginia. After a new law went into effect in Virginia on July 1, 2004, purporting to null and void civil unions along with other partnerships between same-sex couples, the biological mother filed a petition requesting sole custody based on the fact that the new law made the civil union null and void. During this time, the co-parent, still living in Vermont, filed for full custody. The Vermont court heard oral arguments in early August 2004, and in November 2004 the Vermont court held that the co-parent had all the legal rights that any parent would have to a child born into marriage. The Vermont court also found the biological mother in contempt because she refused to allow her former domestic partner visitation. In August 2004, a Virginia court ruled that Virginia had jurisdiction in the case. This decision was appealed to the Virginia Court of Appeals. In November 2006, the Virginia Court of Appeals ruled that Vermont had jurisdiction in this case and that Virginia courts must give full faith and credit to the custody and visitation orders of the Vermont court.|

Citations: VA. CODE ANN. § 20-124.2; VA. CODE ANN. § 20-124.3; Millers-Jenkins v. Miller-Jenkins, 2006 Va. App. LEXIS 539 (Va. Ct. App. 2006); Piatt v. Piatt, 499 S.E.2d 567 (Va. Ct. App. 1998); Roe v. Roe, 324 S.E.2d 691 (Va. 1985); Doe v. Doe, 284 S.E.2d 799 (Va. 1981); Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995); Carrico v. Blevins, 402 S.E.2d 235 (Va. Ct. App. 1991).


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Updated: Thu, January 04, 2007 - 12:00:58