On Friday, January 8, 2016, Judge Steven Frucci of the Virginia Beach Circuit Court made a ruling in favor of a non-biological same-sex parent that some believe shook the very foundation of the institution of family law in Virginia. Some herald it as a landmark decision, one that will influence the course of future cases involving non-biological parents in same sex-marriages, but the unfortunate reality is, it doesn't resolve anything for same-sex parents in Virginia. Although persuasive, other judges are free to do what they believe is the "right" thing.
The Impact of the Court's Decision for Same-sex Couples with Children
Here's the thing. To any rationally-minded parent, Judge Frucci's decision is logical. Although non-biologicial, Lauren Poole is a parent and should be afforded equal rights. In her case, she and her spouse, Karen Poole, enlisted a male friend to act as a sperm donor. The couple utilized an at-home artificial insemination technique and, after the pregnancy was confirmed, the three signed an agreement to release the donor from parental responsibility, naming Laren Poole as the child's second parent. There are so many potential legal issues at play here, but the reality for the baby boy, their son, is that both Lauren and Karen are his parents. At the heart of this case is a young boy who, like any other child, needs loving parents. Divorce is not unique to same-sex couples. It's a reality any married couple with children may face at some point in their relationship. It's a reality that can impact any child, regardless of their parent's gender or sexual orientation. It's a reality that requires truly thoughtful discourse and careful consideration.
Some may be asking what Judge Frucci's decision means for other cases with similar situations. Unfortunately, even where the facts are identical, it can go either way. Judge Frucci would likely be the first to admit that the Pooles' situation is unique, but was resolved in his opinion that "both women should be considered equal parents." The real problem is that there is no written law in Virginia that controls, nor is there any case law that provides even a modicum of guidance. We are quite simply in unchartered territory. While Judge Frucci is allowing the Pooles to proceed, other same-sex couples may not be as fortunate. What we really need is for the existing laws to be overhauled. It's been more than two years since same-sex marriage was recognized in Virginia (October 2014) and, despite efforts to address the lack of acknowledgement of same-sex couples in family law related matters, there have been no changes - and by "no changes," I mean NONE. Since we finalized what is likely the first same-sex divorce in Virginia back in November of 2014, the only updates we've witnessed are to the VS-4 Form that is submitted to Richmond to report the divorce itself. We seem to be taking "baby steps" to an extreme when it comes to same-sex marriage. The laws need to reflect reality.
Call to Action?
Whatever your position on same-sex marriage, one thing is certain: we absolutely need to tackle this issue head-on. Forcing judges to legislate from the bench is not a viable solution. This "step in the right direction" should really be a wake up call. If we leave such an important issue in the hands of the judicial system, there's a chance they'll get it wrong. If this issue is appealed and there is no legal authority to support Judge Frucci's decision, the young boy in this case could be without his mother until the inevitable "right" thing happens. At some point we'll get it right, but in the meantime, a young boy may suffer. Two years is long enough. It's time we fix our legal system.