Legal Experts To Gather Thursday at JFS to Navigate Same-sex Adoption in VA
In 2011, Gov. Bob McDonnell signed into effect adoption legislation containing a controversial section called a “conscience clause.” The conscience clause – which affects a number of issues in state laws – allows state funded adoption agencies to deny adoptions based on religious or moral beliefs, including rejecting possible parents because of their sexual orientation.
To help wade through this complicated issue, Ricmond’s Jewish Family Services’ press release will host a workshop on April 3 for members of the LGBT community considering adoption.
This seminar is funded by a grant from the Richmond Gay Community Foundation, and features Colleen M. Quinn, Esq. of The Adoption & Surrogacy Law Center at Locke and Quinn, and JFS Adoption staff.
Quinn, an adoption and assisted reproductive technology attorney at Locke & Quinn based here in Richmond, is excited to help lay out the issues LGBTQ couples face when it comes to adoption in Virginia.
For a same-sex couple in Virginia, only one parent can adopt the child. The other cannot adopt but can be a custodial parent along with the adoptive parent. “That gets them what I would call about 85 percent of what a legal adoptive parent would be,” said Quinn. “The custodial parent can: make educational, activity enrollment and medical decisions: have access to the child’s medical, educational and other activity-type records; can talk to the doctors, school teachers, and other care providers, and usually can place the child on their health insurance.”.
So what rights does a custodial parent lack? The custodial parent “gets a lot of the same responsibilities and rights as an adoptive parent, but what they don’t get are several other things including, most importantly, his or her name on the child’s birth certificate,” said Quinn. She points out that this is probably the biggest issue for many LGBT couples adopting newborns. “Also, the child doesn’t automatically inherit from the custodial parent and doesn’t automatically receive any social security or military-type benefits,” either.
If an LGBTQ couple has one parent who is the adoptive parents and one who is the custodial parent, and then splits up, the custodial parent – right off the bat – has a “slight disadvantage” over the adoptive parent when it comes to any custody battle.
Quinn explained if the custodial parent has only held that position for a short time, he or she may have less leverage than an adoptive parent.
Even though the Va Department of Social Services regulations allows private adoption agencies to discriminate against potential adoptees based on religious grounds, there are numerous private agencies, such as JFS, who will work with LGBTQ families. The larger problem is children who are entrusted to the discriminatory adoption agencies will not have the opportunity to be placed with LGBTQ couples.
“What has changed in Virginia is the Bostic v. Rainey federal court decision, which struck down as unconstitutional Virginia’s constitutional amendment that says [the state] will only recognize marriage as between a man a woman,” said Quinn. “That’s going to have to play itself out, probably ending up at the United States Supreme Court.”
How will this affect adoption for LGBTQ couples? If the decision in Bostic v. Rainey is upheld, then ideally marriages by same sex couples in Virginia will be recognized, and, then, since the adoption laws in Virginia permit either singles or married couples to adopt, theoretically married LGTBQ couples will be able to adopt a child together just like heterosexual couples.
“But we’re not there yet,” said Quinn. “Even though [the] constitutional amendment… has been struck down as unconstitutional, we still do not have the ability to do same sex adoption in Virginia, yet.”
So what can same sex couples who want to jointly adopt a child do at this time? Wait to see what happens or adopt in another state or have the custodial parent do a second parent adoption in another state as a non-resident.
In the JFS workshop, Quinn will go over what options LGBTQ couples have in Virginia from a legal perspective. “That’s also going to include their estate planning documents [and] what they should do… to set up a trust and guardianship in their will for the child,” she said.
It’s sure to be a unique chance to see inside the adoption process here in VA. Visit the JFS website for more information on the 5:30 to 7:30 pm April 3 workshop.
You can probably add another 1000 out-of-state same-sex marriages which have since been legally recognized.June 29, 2015
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