What Virginia Courts Consider in LGBTQIA+ Custody Cases

Parents in the LGBTQIA+ community often enter a Virginia custody proceeding worried that a judge will weigh their family structure against them. Virginia Code § 20-124.2 and § 20-124.3 govern these cases, and neither statute lists sexual orientation or gender identity among the considerations a court applies.

In many of these cases, a different question has to be settled first. Before a court reaches the best interests analysis, it has to determine which adults the law recognizes as parents. A parent who is neither biologically related to the child nor an adoptive parent may have to establish standing to be heard at all, and then meet an evidentiary burden legal parents never carry.

The Best Interests Standard Governs Every Virginia Custody Case

Under Virginia Code § 20-124.2, a court determining custody gives primary consideration to the best interests of the child. The statute establishes no presumption in favor of any form of custody and none in favor of either parent. Courts are directed to assure children frequent and continuing contact with both parents when appropriate.

Virginia Code § 20-124.3 sets out the factors a court shall consider in reaching that determination. The language is mandatory rather than permissive, and nine of the ten enumerated factors address the child’s circumstances and the parent-child relationship.

• The age and physical and mental condition of the child and of each parent, with consideration given to the child’s changing developmental needs.
• The relationship between each parent and the child, including each parent’s ability to meet the child’s emotional, intellectual, and physical needs.
• The role each parent has played, and will play, in the child’s upbringing and care.
• Each parent’s willingness to support the child’s relationship with the other parent.

Parentage Is the Threshold Question for Non-Biological Parents

Virginia Code § 20-124.1 defines a “person with a legitimate interest” to include grandparents, stepparents, former stepparents, blood relatives, and family members properly before the court. The statute directs that the term be construed broadly, and the list is expressly not exhaustive. A partner who helped raise a child without adopting is neither excluded from that category nor named in it, which leaves the question open.

The burden of proof is where that difference shows. Under § 20-124.2(B), a court may award custody or visitation to a person with a legitimate interest only upon a showing by clear and convincing evidence that doing so serves the child’s best interests. That standard falls on the non-parent, while the legal parent carries nothing comparable. Stepparents and grandparents face the same threshold, which follows from the legal definition of a parent rather than from any party’s sexual orientation.

Adoption is not a small undertaking. It carries costs, it proceeds on the court’s timeline, and it asks a family that already functions as a family to document that fact on paper. Beginning the process before a dispute arises is still preferable to litigating the question of parentage during a divorce. The objective is to memorialize the relationship legally, through marriage before the child’s birth or a adoption afterward, so that parentage is documented rather than disputed.

Can a Judge Consider a Parent’s Sexual Orientation or Gender Identity?

The tenth factor under § 20-124.3 permits a court to weigh “such other factors as the court deems necessary and proper to the determination.” A court can weigh sexual orientation or gender identity under that provision, though it will generally do so under a different heading. If a child is struggling with a parent’s gender transition, and that difficulty reaches the court through the child’s therapist, the transition becomes relevant to the extent it bears on the child’s wellbeing. The analysis attaches to the child’s circumstances, not the parent’s identity.

Section 20-124.3 also requires the judge to communicate the basis of the decision to the parties, orally or in writing. Except in consent orders, that communication must set out findings on the relevant factors. Those findings become the record, and the record is what makes a ruling reviewable. Most of what a court hears about a parent’s relationships is the same regardless of who the parent is, and preparing means answering those questions with specific detail about the child’s daily life.

How Surrogacy and Donor Conception Determine Parentage

Virginia Code § 20-158 governs parentage for children conceived through assisted conception, and it does not treat genetics as the controlling fact. The gestational mother is the child’s mother, and her spouse is the child’s other parent. A donor is not a parent unless the donor is the gestational mother’s spouse. The statute was amended in 2019 to replace gendered language with “spouse,” and it applies to same-sex married couples on the same terms. That provision is the most direct protection available to many LGBTQIA+ families, and it depends on the marriage being in place at birth.

Surrogacy is handled separately. Where a court approved the contract in advance, the intended parent is the parent of the resulting child. Where no court approved it, § 20-158(E) weighs genetic contribution, custody of the embryo, and the filing of the surrogate consent and report form. A non-gestational parent outside these provisions needs a parentage order or an adoption, regardless of intent or involvement since birth.

Establishing Parentage Before a Dispute Arises

Families are hesitant to raise legal questions while a relationship is stable, which is when they are easiest to answer. A non-biological or non-adoptive parent, or a parent heading into a separation without clarity about where they stand, is better served by speaking with a family law attorney before anything is filed. Schedule a consultation with Eris Law Group to discuss how Virginia law applies to your family.