Same Sex Marriage and Children

Last week, I posted about some potential areas of the law that may need examination to be consistent with the recent court rulings that allow same sex marriages to proceed in Virginia. Children and child custody is another area of the law where rights to custody, decision making, and visitation start with the premise that the two parents who are married are the biological parents. While there are provisions in the code about parental status in assisted reproduction matters and there are provisions in other parts of the law about who else has a legitimate interest to legal and physical custody rights regarding a child, the burden of proof can be different if a person is not a biological parent and can pose a large hurdle for the non-biological (even if married) parent. If you are married and have a child together, consultation with a family law attorney about how to memorialize your rights and desires about your child in the event of divorce or death is important. If you are not yet married but are engaged or considering marriage, talking to a family law attorney about how a prenuptial agreement can help protect your intentions if children are part of your future family is a good step to take.