Virginia Appeals Court Seemingly Takes Pleasure in Rejecting the Parental Rights of a Non-Biological Same-Sex Parent

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By Eric Lesh

In Hawkins v. Grese, 809 S.E.2d 441 (Feb. 13, 2018), Lambda Legal represented a non-biological parent, Denise Hawkins, in the Virginia Court of Appeals, where she was appealing a lower court decision that she was not a parent to the child she raised with her former same-sex partner, and that Hawkins failed to show “special facts and circumstances” warranting a best interest custody determination.

Hawkins and the biological mother, Darla Grese, were in a relationship for 10 years but never married. Marriage was of course not an option until October 2014, when the Supreme Court denied a petition for certiorari seeking review of the 4th Circuit’s decision finding Virginia’s ban on same-sex marriage unconstitutional. Thus, Virginia’s unconstitutional marriage ban was still on the books for the during of their relationship. The women jointly planned for the pregnancy, and used A.R.T to have their child. In 2014, the adults’ relationship dissolved. Nevertheless, for a time, Hawkins and Grese continued to share joint custody, until Grese, the genetic mother, cruelly severed all contact in 2016.

On February 24, 2016, Hawkins filed a petition for custody and visitation in the Juvenile and Domestic Relations District Court for the City of Virginia Beach. The court found that the child considered both women to be his parents, and awarded joint legal and physical custody as well as shared visitation.

Grese initially appealed the trial court’s custody and visitation decision to the Circuit Court of the City of Virginia Beach, but later withdrew the visitation appeal, so the only issue remaining in the case was custody, and Hawkins’ right to continued visitation is not contested. Circuit Court Judge Steven C. Frucci awarded Grese full custody of the child. The circuit court “determined that Hawkins could not be considered a parent based on Virginia’s rejection of the de facto parent doctrine.” It further held that since Hawkins, according to the court, was not a legal parent, but rather a non-parent interested party, she could not rebut the parental presumption in favor of Grese’s custody.

According to the attorney representing Hawkins, this “finding was despite two courts having heard evidence from child psychologists and the guardian ad litem that the nearly 10 year-old child understands our client to be his mother and that he has, and will continue, to suffer harm if that relationship is not maintained.” In fact, the Juvenile and Domestic Relations Court found that the child was “developing behavioral problems based on his separation from Hawkins,” and that removing either parent from the child’s life would “cause emotional and psychological harm.”

Virginia law allows a “person with a legitimate interest” to seek custody where one of a list of factors are present, among those “special facts and circumstances sufficient to overcome the presumption” that a “natural” parent acts in the child’s best interest. On these grounds, Hawkins argued that her evidence overcame this presumption because the two women had created a planned family, nurtured a parent-child bond intended to be permanent, and severing the relationship would cause great harm to the child.

Additionally, and alternatively, Hawkins argued that during her relationship with Grese Virginia law had unconstitutionally prohibited her from securing her parent-child relationship by marriage or through second-parent adoption. Relying on the U.S. Supreme Court’s ruling in Obergefell v. Hodges, Hawkins argued that the circuit court erred in refusing to recognize her as a parent, instead of as a non-parent.

Judge Robert J. Humphreys wrote for the court of appeals panel, producing an opinion that seemed to have a good time as it rejected each of Hawkins’ arguments.

Turning to the question of whether Hawkins was a “parent,” the court looked to statutory authority and concluded that Virginia uses a definition tied to blood or adoption, though it also provided a method for parties without these ties, but with similarly close relationships, to intervene as “persons with a legitimate interest” under some circumstances.

The court then rejected Hawkins’ argument that Obergefell implicitly redefined “parent” or “family” in a manner that obviates that definition and “mandates a holding that, because her relationship with Grese was the functional equivalent of marriage, her relationship with the child was constitutionally a parent-child relationship.” The court found that there was no “serious dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship, but natural, biological parentage is a unique relationship predating any legal arrangement.”

Despite the fact that Virginia barred Hawkins and Grese from marrying during their relationship, the court found that Virginia’s definition of “parent” did not discriminate between same-sex and different-sex couples, because if the couple was not married, the non-biological partner was not a parent, irrespective of gender or sexual orientation. By applying a rational basis test, the court then found the definition in Virginia to be “entirely rational — people are considered parents on either biological or adoptive grounds, parties without these qualities retain a fair legal method to intervene if a parent is unfit.” This was certainly disingenuous in light of the past marital prohibition and the limitation that the legal parent would have to be found unfit for the non-legal parent to assert a claim.

The court then threw up its hands and punted to the legislative branch. The court reasoned that in cases like this, “legal recognition is more properly the province of the people’s representatives in the General Assembly rather than the courts and Obergefell does not require a different conclusion.” This, of course, is an unusual result, since many state courts across the country have overturned old laws that prevented non-biological parents from seeking custody and visitation of their children raised with a former partner — particularly after Obergefell.

In fact, in the landmark marriage equality ruling, Justice Kennedy wrote “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Nevertheless, the Virginia court condescendingly characterized Hawkins’ argument as asking the court to adopt a “know it when we see it” “special circumstances” definition of parentage, which would “open a Pandora’s box of unintended consequences to hold that a legal parent-child relationship is created simply by virtue of such factors as the amount of time a child spends with, or the strength of an emotional bond that exists between, another living in the same household.” (This statement vastly oversimplified the facts of this case.) Despite Hawkins’ reasonable application of %Obergefell%, the court pooh-pooed the argument, noting that “if restricting marriage to opposite sex couples was unconstitutional because it denied same-sex couples the ‘constellation of benefits’ heterosexual couples received, it could not possibly also then require the redefinition of every star in that constellation.” Finally, the court found that the evidence presented by Hawkins was insufficient to rebut the parental presumption in favor of awarding sole custody Grese.

The ruling is deeply unsatisfying, as this case strikes at the very heart of what was at stake in Obergefell— a ruling that places children and families at the center. Surely, Obergefell should reach recognition of the parental bond intentionally formed by parents who were prohibited from marrying and adopting during the time of their relationship, but were subsequently told that the law could not recognize the rights of the non-biological parent, in part, precisely because they weren’t married and didn’t jointly adopt at the time.

Elizabeth Lynn Littrell of Lambda Legal’s Atlanta Regional Office and Virginia local counsel Barbara A. Fuller, of Fuller, Hadeed & Ros-Planas, PLCC, represent Hawkins. Brandon H. Zeigler and Allison W. Anders, of Parks Zeigler, PLLC, represent Grese. Margaret Weaver is the Guardian ad litem representing the child’s interest.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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