Custody Parentage Laws | Vermont
Can a single gay individual adopt a child in Vermont?
Yes. Vermont law provides that any person may adopt or be adopted by another person for the purpose of creating the relationship of parent and child between them (15A V.S.A. § 1-102(a)).
Can same-sex partners together adopt a child in Vermont?
Yes. More information on adopting in VT can be found, here.
Are there different kinds of custody?
Yes, four kinds:
- “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral, and religious development.
- “Shared legal custody” means that both parents are involved in and make these decisions.
- “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent unless a court finds that visitation is not in the child’s best interests.
- “Shared physical custody” means that the child resides with both parents in a way that ensures frequent contact with both.
The court may also award custody to a third party if it finds it to be in the child’s best interests.
What are the factors for making custody determinations generally?
Upon divorce or civil union dissolution, a court makes an order concerning parental rights and responsibilities of any minor child of the parties based on the best interests of the child (15 V.S.A. § 667). If the parties make an agreement about custody and visitation, the court will presume that agreement to be in the best interests of the child (15 V.S.A. § 666). If parents cannot agree, the court determines the way that parental rights and responsibilities will be divided or shared between them. In considering the best interests of the child, the court examines the following factors (15 V.S.A. § 665):
- the relationship of the child with each parent and each parent’s ability to provide the child with love, affection and guidance;
- each parent’s ability to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
- each parent’s ability to meet the child’s present and future developmental needs;
- the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
- each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
- the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
- the relationship of the child with any other person who may significantly affect the child;
- the parents’ ability to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
- evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent (15 V.S.A. § 665).
If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?
Vermont courts base custody arrangements on the best interest of the child. As a general rule, a parent’s sexual orientation or marital status should have no bearing on a child’s best interests.
Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to your child. Any number of reasons can be cited, such as that the LGBT parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a bad role model, or that the parent’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the hay parent or the child. Contact GLAD for further resources for dealing with such a situation.
Is it considered harm to the child if they are teased about having a gay or lesbian parent?
It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.
As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?
It may make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a real, substantial and unanticipated change in circumstances that alter the child’s best interests (15 V.S.A. § 668(a)). If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew.
Can a court keep my kids from visiting when my partner is present?
The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
1. Support the rights of LGBT parents;
2. Honor existing relationships regardless of legal labels;
3. Honor the children’s existing parental relationships after the break-up;
4. Maintain continuity for the children;
5. Seek a voluntary resolution;
6. Remember that breaking up is hard to do;
7. Investigate allegations of abuse;
8. The absence of agreements or legal relationships should not determine outcome;
9. Treat litigation as a last resort; and
10. Refuse to resort to homophobic/transphobic laws and sentiments.
For more detailed information about these standard see the publication, Protecting Families: Standards for LGBT Families.
Where can I go if I need help resolving a parentage issue?
As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or calling 800.455.4523 (GLAD).
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