Legal Question in Family Law in Virginia

Re: child custody/homosexuality

First, make sure you are asking for the proper state law. You have asked for the law in VA, but I see that you have also checked MD as a state that is involved. In general, the law of the state where the child resides for the last 6 months prior to filing a court action is the proper state whose law would apply. That being said since I practice in both MD and VA I will give you the law in both states.

In Maryland the court awards custody and visitation based on the best interest of the child. A parent's sexual orientation is a factor only to the extent that it would harm a minor child. Consequently in a very recent MD case, the mere fact that a child's father was living with another male in a homosexual relationship was not grounds for conditioning at-home visitation rights on the absence of the live-in companion.

In Virginia, homosexuality does not constitute parental unfitness per se but can render a parent an unfit custodian if the circumstances are such as to have an adverse impact upon the children. In a 1985 case the Virginia Supreme Court shifted custody of a nine year old daughter from her father to her mother because of the father's active homosexual relationship in the same residence as the child.

Despite the case law explained above, each case is highly fact specific. Depending on the facts of your case, homosexuality may or may not be a factor in determining custody. You really need to have a consultation with an attorney to get a better idea of your specific rights and vulnerabilities.

If you have any questions, please don't hesitate to call me at 703-598-9220 or 301-652-0663.