Adoption for same sex couples is a very controversial topic in Family Law, and often same sex couples face many unique issues if they wish to adopt. Many states have different laws that apply for gay and lesbian adoption, as opposed to heterosexual couples. Several states also have special rules that apply when a child is born into a gay or lesbian partnership. Gay and lesbian couples may sometimes opt to bring a child into their lives through conception and birth as well. For a lesbian couple, this is usually done through a male donor or a sperm bank and having one of the couple become pregnant. Similarly, gay men may use a surrogate mother and then become a legal parent through adoption. The other parent then can become a legal second parent through stepparent or second parent adoption. However, many states including Virginia don’t allow second parent adoption.
The definition of a legal ‘parent’ is (n.) the lawful and natural father or mother of a person. The word does not mean grandparent or ancestor, but can include an adoptive parent as a replacement for a natural parent. Adoption laws vary from state to state, and there are some states that do allow lesbian and gay couples to adopt children as legal, joint parents. Gay and lesbian couples in these states can go through adoption agencies in order to adopt, personally arrange their adoption, or even adopt internationally.
In many states, however, stepparent, second parent or even joint adoption is not an option for gay and lesbian couples. Although the Commonwealth of Virginia does not have a law in place that prohibits same sex couples from adopting a child, it is usually a very hostile situation and it may be very difficult in many occasions for gays and lesbians to be approved for adoption. Virginia determines the eligibility of adoptive parents on a case by case basis. In fact, code of VA 63.2-1201 says that “any natural person who resides in the Commonwealth” may file a petition for adoption. Also, VA code 63.2-1225 states that “In determining the appropriate home in which to place a child for adoption, a married couple or an unmarried individual shall be eligible to receive placement of a child for purposes of adoption.”
The Commonwealth of Virginia takes into consideration the birth parents of the child and holds the position that adoptive parents must meet the requirements for the “best interests of the child”. Specifically, in code section § 63.2-1205 the following requirements are stated:
In determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, or is unobtainable, the circuit court or juvenile and domestic relations district court, as the case may be, shall consider all relevant factors, including the birth parent(s)' efforts to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether...