With news of a disturbing case out of Mississippi, non-biological parents are left wondering… Am I protected?
The answer depends on whether these parents have adopted their children. While adopting one's own child seems absurd, adoption is often the only way for a nonbiological parent to conclusively establish legal parentage with respect to their child. You can read news coverage of the case of Chris Strickland and Kimberly Day here. Before marriage equality, these two women had a child together (as the person who gave birth to the child, Kimberly is the gestational mother). When Kimberly and Chris split and their dispute hit the courts, Chris lost out in a major way: the court found that the anonymous donor had more parental rights than Chris but still held her liable for support.
Of course, this result seems outrageous to many. And the laws of the various states in play in a given situation can quickly make the "could this happen here?" analysis complicated.
But could something similar happen in Virginia? Yes, a similarly unjust outcome is definitely possible. However, Virginia law is distinguishable from Mississippi law in some very important ways:
First, under Virginia law, the anonymous donor for a child born through assisted conception by medical means does not have any rights or standing as a parent unless that person is the spouse of the gestational mother.
Second, under Virginia law, marital status is the key to accessing the adoption scheme. As a result, the de facto ban on adoption by same sex couples that was the logical consequence of not having access to marriage is considered by courts as having been entirely undone by marriage equality. Of course, the marital relationship is still essential for the nonbiological parent to be able to proceed under the "step-parent adoption" scheme. While the label "step-parent" is absurd for people who are in all respects "parents" — but the law is what it is. And fortunately, in the most common situations, the anonymous donor will be absolutely irrelevant to the adoption process.
Third, under Virginia law, a court cannot order a non-parent to pay support as a person standing "in loco parentis:" a legal parent-child relationship is a pre-requisite for a duty of support; however, a person can be awarded visitation and yet not owe a duty of support.
The result is that at least here in Virginia, this sort of situation is almost always avoidable if the non-biological parent acts in a timely manner to protect their rights. So what would a Chris in Virginia need to do? Simply adopt her child during the marriage.
In Virginia, a final adoption order is not susceptible to collateral attack after 6 months… So after that 6 months, it doesn't matter if the couple splits up. Both will have a full-fledged legal relationship of parent to their child. At that point, the legal relationships between each parent and the child will be legally indistinguishable in virtually all circumstances. Of course, this also means that both parents have a duty of support moving forward.