The Virginia Supreme Court ruled 5-to-2 on April 22 that state officials must issue birth certificates to out-of-state same-sex couples who adopt Virginia children.
Virginia is among the least gay-friendly jurisdictions in the United States. Nearly two years after the Supreme Court Lawrence ruling striking down sodomy laws, the Virginia Legislature has still not repealed or amended its sodomy law to comply and it passed the most wide-ranging Defense of Marriage Act of any state, one so broad it could make private agreements between gay and lesbian couples unenforceable in state courts. The state also outlaws joint adoptions by gay couples or co-parent adoptions.
When same-sex couples from outside the state sought new birth certificates for Virginia-born children they had adopted in the District of Columbia courts, the state registrar and state Health Commissioner Robert B. Stroube both stoutly resisted, arguing that it would violate state law to list two parents of the same sex on a birth certificate. The officials cited the state’s strong anti-gay marriage policies and argued regulations required them to use the same birth certificate form in effect when the child was born—which included spaces for a mother and father’s names—in issuing a substitute.
Three same-sex couples who had been denied new birth certificates for their adopted children joined in a lawsuit brought by the American Civil Liberties Union chapter in Virginia. They asserted that Virginia law requires issuance of the birth certificates listing both legal parents after an adoption, and that failure to do so would violate both the full faith and credit clause of the U.S. Constitution—under which states typically honor lawful adoption decisions made by courts in other states—and the equal protection clause.
Richmond Circuit Judge Randall G. Johnson rejected the plaintiffs’ lawsuit, finding that Virginia had a strong public policy rejecting same-sex marriage, so it could not “recognize a status that Virginia does not accord to its own citizens.” Johnson also said birth certificates can only list a father and a mother, not two mothers or two fathers. “It just cannot be done,” he wrote.
Rejecting this reasoning for a majority of the Virginia Supreme Court, Justice Donald W. Lemons found that the state statute requires issuing the licenses as requested, and opened by writing, “This case is about issuing birth certificates under the provisions of Virginia law; it is not about homosexual marriage, nor is it about ‘same-sex’ relationships, nor is it about adoption.”
Lemons found that the relevant provisions use the terms “adoptive parents” and “intended parents” without defining them, and the statute makes no reference to gender. Only the form administratively adopted by the Health Department for recording births uses the terms “father” and “mother” to designate the parents.
Lemons concluded, “There is nothing in the statutory scheme that precludes recognition of same-sex couples as ‘adoptive parents.’ [The statute] anticipates the listing of adoptive parents without specific restrictions.”
The two dissenting justices stated a fundamental disagreement, arguing that the pertinent question was whether the specifically authorized such listing two parents of the same gender, relying on the issue of what information the original birth certificate listed.
Adopting a strict construction of a statutory provision authorizing an “unrelated” person to seek custody of a child, the Court of Appeals of Kentucky ruled on April 15 that a lesbian co-parent who was not the child’s “primary caregiver” did not have standing to pursue custody of the child she had been raising with her former partner, even though she was the child’s primary financial supporter. As is common in child custody cases, Judge John D. Minton, Jr., referred to the parties by their initials in his opinion.
B.F. and T.D. began their relationship in 1995 in Indiana, and soon moved to Louisville, Kentucky, where they to adopt a child. Since Kentucky does not authorize joint adoptions by unmarried partners, T.D. became the child’s adoptive parent, but the women raised the child together until their relationship dissolved.
Minton’s opinion noted that both women contributed to the child’s “financial, emotional, and physical care.” B.F. provided most of the financial support, while T.D. was more involved in the child’s daily activities. The women discussed drafting an agreement granting B.F. custodial rights, but never got around to it.
T.D. left the couple’s home in July 2003, taking the child with her and refusing her former partner visitation. B.F. filed a petition seeking joint custody and visitation rights and a temporary visitation order pending the trial, which was granted on a supervised basis.
Under Kentucky law, a person not biologically or legally related to a child may qualify as a “de facto custodian” who would have standing to seeking legal custody or visitation if he or she was both “the primary caregiver” and “financial supporter” of a child.
On the basis of time-restricted two-hour hearing, Jefferson County Family Court Judge Kevin L. Garvey concluded that B.F. had proven she was the primary financial supporter, but that the evidence showed that T.D. was the primary caregiver. As such, he concluded that B.F. could not qualify as a de facto custodian with legal standing.
In her appeal, B.F. argued that her right to due process had been violated when the time constraint prevented her from cross-examining her former partner. The appeals court rejected this argument, finding the trial judge has discretion on matters of schedule, and there was no “in injustice to either side.”
Turning to the substantive issue, the appeals court, relying on a prior case, found the statute was intended to give a primary caregiver standing when the legal parent does not provide care for a child. “[The] custodian statute does not intend that multiple persons be primary caregivers,” Minton wrote. Since the evidence “overwhelmingly” showed that T.D. was the primary caregiver, B.F. could not qualify.
The court refused to take up B.F.’s last-ditch argument that the court could apply equitable principles or common law to decide the case, saying that she had failed to make such arguments at the trial, and was barred from doing so on appeal.
The appeals court specifically disavowed having given any weight to issues of sexual orientation.