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Virginia is not for gay lovers, at least not those who want to tie the knot there. And it’s not too friendly for its gay parents, either.
The commonwealth recognizes second-parent adoptions granted in other states, but does not offer them to anyone, gay or straight. But D.C. allows even nonresidents to put a second, nonbiological parent’s name on their child’s birth certificate when they give birth within city limits. They can then secure a second-parent adoption with an affidavit.
This has led to a spate of birth-related border crossings as lesbians from Virginia and other states hold out for a spot in a D.C. maternity ward, where they can get the nonbiological mother’s parental status affirmed by a court order.
“Even states that don’t recognize same-sex couples, and may or may not ban outright same-sex second-parent adoptions, are required by the U.S. Constitution to honor court orders from other states or the District, meaning that Virginia would have to treat both as parents,” says Marcia B.F. Kuntz, a local attorney who specializes in LGBT family law.
“Virginia doesn’t like the whole gay marriage thing,” says Margot Owen, an Alexandria-based lawyer who’s been handling same-sex family-law cases for 23 years. “But when it comes to the relationship between legal parents and their children, they try not to get in the way of that.”
However, gay parents of D.C., there is some business to handle before you all head out to Tysons Galleria. Virginia can still seem scary, legality-wise, to gays—especially in a time of crisis. Are you prepared, Higher Power forbid, in the event of a car accident that incapacitates you or your child?
For the sake of argument, let’s say we’re dealing with a two-parent couple, one of whom is the birth parent. A D.C. birth certificate with both parents’ names on it is your best claim to their child. (A nonbiological parent or parents who’ve otherwise legally adopted their child would have protection through the adoption document.)
And since we’re now compiling a dossier of sadness, Owen also suggests gay couples get standby guardianship orders spelling out that the other partner should have legal guardianship over the child if the other is incapacitated. An advanced medical directive and medical power of attorney are also good for all families to have: Owen points out that Virginia has a pretty stringent medical records privacy act that “any people going to small hospitals in rural Virginia will very quickly find out about.” Gays need to make sure they’re cleared to access each others’ records since they’re not considered married in the state.
Owen urges all families—gay, straight, legal, or otherwise constructed, and wherever they live—to have a will. (In case “they both go down with the cruise ship and the child survives,” she offers.) It should include a guardian and a trustee to deal with any assets that can go toward the child.
A last piece of advice for D.C., Maryland, or even Virginia parents having these documents drawn up: “I tell my same-sex clients not to refer to their partner as a ‘spouse,’ because it might open the door to a challenge,” says Owen. That’s because Virginia law says that any writing intended to bestow the benefits of marriage on same-sex couples are void, and theoretically subject to challenge by angry exes or “concerned” family members.
Got it? Good. Go in good health and make some D.C. gaybies.