October 11, 2014
What a week for Virginia law! On Monday (October 6), the U.S. Supreme Court declined to hear the appeal of the 4th Circuit’s decision holding that Virginia’s ban on same-sex marriage is unconstitutional, thus leaving that decision in place. To make a long story short, same-sex marriage is now legal and recognized in Virginia.
On October 10th, Governor Terry McAuliffe wrote a memorandum to Virginia Departments of Social Services, instructing them that married same-sex couples should now be considered in the same way as heterosexual married couples for the purposes of adoption and foster parenting. “Any married couple is a married couple for purposes of adoptive placements in accordance with Virginia Code § 63.2-1225,” the governor wrote, citing the Virginia adoption statute.
This change has huge implications for married same-sex couples in Virginia. Although we have yet to see how it will play out in the early cases, it seems clear that married same-sex couples should now be able to adopt a child exactly the same way that a heterosexual couple would, including stepparent adoptions, adoptions from foster care, and agency adoptions.
The change also leaves many things unclear. Since same-sex marriage is now recognized in Virginia, it’s logical that any child that a same-sex couple had together through artificial insemination or surrogacy would now be recognized as the legal child of both partners, with no need for a “second-parent adoption” or guardianship. Still, if there’s one thing I’ve learned as a lawyer, it’s not to assume that people will do what is logical. It will be very interesting to see how that issue unfolds.
It is also unclear whether this change leaves privately-owned adoption agencies free to discriminate against same-sex couples. It is clear that the Virginia Department of Social Services, which does adoptions from foster care, may not do so. Since all adoption agencies must be licensed by the state to operate, must they also follow this law? Or these agencies, most of which are religiously affiliated, be exempt on religious grounds?
If you have questions about how these exciting changes will impact your family,
Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.