Legal Question in Family Law in Virginia

Re: Gay couple

I doubt that any Virginia court would uphold the agreement which you've described for the custody of a child due to your sexual orientation and that of your partner. Therefore, in answer to your question, such an agreement would not likely have the enforceability of the law behind it.

Re: Gay couple

I have to agree that this is going to be a difficult problem. As you are no doubt aware, Virginia voters just approved an amendment to the Virginia Constitution that not only bans gay marriage (which was already prohibited by Virginia law), but goes on to prohibit any "legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." As far as I am concerned, and the Virginia Attorney General disagrees with me on this, no one can know exactly what this means until it is interpreted by the courts of Virginia.

I would be very surprised, however, if this language were not relied on to attack such a custody agreement.

Regardless of this, it is also my opinion that, regardless of any contract regarding child custody that you may enter into, it is not binding until approved by a court.

The initial problem you have is, upon the birth of the child, will you both have legal custody? If one of you is the birth mother, she will have legal custody, and the other will be a legal stranger to the child, with virtually no claim to custody. (I am assuming that this is assisted conception, as the existence of a natural father with potential rights makes this situation incredibly complicated.)

Can two unmarried persons be awarded joint custody? I have seen it done. Can two unmarried persons of the same sex be awarded joint custody? Perhaps, but if the court finds that the nature of the relationship is potentially harmful to the child, it can refuse to award joint custody.

I write all this to tell you that there is no simple answer to your question, and that you and your partner need to talk to an attorney and think all this through before you proceed.

Good luck.

This answer is a general discussion of legal issues only, and does not intend to provide specific legal advice for you to follow, nor does it create an attorney-client relationship. You should always consult an attorney who can advise you with reference to the specific details of your situation.

Re: Gay couple

I agree with most of the advice you have received thus far.

However, a third party (non biological parent) can obtain court ordered custody rights. What I recommend is to file a petition in the juvenile and domestic court where the child lives. Once filed, the parties may enter a Consent Agreement and ask the judge to enter it. Once a third party receives custodial rights they can only be altered in the best interests of the child.

This is Virginia after all, and homosexual unions are not favored. The Court may appoint a Guardian for the child who may influence the Court's decision to grant your Consent Order.

I agree that your private agreement would not have much effect and have no legal standing. Custody may only be granted or taken away by a Court.

A good lawyer would be most helpful to achieve your desires.

Good luck.