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Va. Court of Appeals: No parent status without marriage or adoption.

Byline: Rebecca M. Lightle

A woman who raised a child with her partner in their shared home for seven years could not be considered the childs legal parent, the court of appeals held, because she never married her partner, who was the childs biological mother. Appellant Denise Hawkins and Appellee Darla Grese were unmarried partners in a -year, same-sex relationship. They discussed having a child, and in 2007 Grese gave birth to B.G., conceived via artificial insemination. The parties never married or formed a civil union, nor did Hawkins ever adopt B.G. Nevertheless, B.G. was raised by Hawkins and Grese in their shared home until they ended their relationship in 2014. For two years after that, the parties informally shared custody of B.G., but their relationship soured further, and Grese terminated B.G.s contact with Hawkins. The circuit court, determining that Hawkins could not be considered a parent, granted full custody to Grese. Hawkinss appeal includes constitutional claims. Rational-basisreview On appeal, Hawkins alleges that her parental rights have been improperly denied based on her sexual orientation and that the circuit courts action itself, rather than the Virginia law on which it relied, is unconstitutional. While this is certainly a legitimate argument, it narrows the focus of this courts analysis. The U.S. Supreme Court has not characterized sexual orientation as a suspect or quasi-suspect classification deserving strict scrutiny. Instead, the Court has chosen to rely on the rational-basis test or to simply omit discussion of the proper standard when confronted with issues of homosexual rights. Though the legal history on this point is confusing, presently it appears that sexual-orientation-based classifications are subject to rational-basis review. As for parental rights, the principal cases addressing the fundamental right of child-rearing predate the adoption of the modern tiered system of constitutional application. As such, the Court has not stated clearly what level of scrutiny applies in addressing parental rights. Hawkins, however, is seeking an initial determination that she is a parent and, thus, has a right to custody of B.G. at least equal to Grese, B.G.s biological parent. Therefore, whether the issue is that Hawkinss rights were violated because she is a lesbian or because the circuit court determined that she is not a parent, the court concludes that the rational-basis test applies in either case to the constitutionality of the circuit courts judgment. Parentalstatus Hawkinss contention that she is B.G.s parent begs two questions: (1) How does Virginia define a parent, and (2) is that definition constitutional? The Virginia Code makes clear that the term parent contemplates a relationship to a child based on either the contribution of genetic material through biological insemination or by means of legal adoption. In the case of children that are the result of assisted conception, like B.G., the law is clear that Grese, but not Hawkins, is a parent of B.G. Further, the most germane section of the Code, dealing with custody and visitation, defines person with a legitimate interest a partyother than a parentwho may seek custody and visitation as including but not limited to grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members. If such persons with a legitimate interest are in contention with parents for custody, they cannot simultaneously also be parents. The court holds that, where custody disputes are concerned, the term parent is a relationship to a child only through either biological procreation or legal adoption. This definition is consistent with Virginias refusal to adopt wider parental definitions through other legal constructions, such as the de facto or psychological-parent doctrines adopted by other states and urged here by Hawkins. InStadter v. Siperko, 52 Va. App. 1 (200), this court noted that the de facto parent doctrine was being used as a tool for overcoming the constitutional presumption in favor of parents in custody disputes. The court pointed out that such a tool already exists: the person with a legitimate interest classification of Code 20-124.1. In sum, Virginia uses a definition of parenthood tied to blood or adoption, while also providing a method for parties without these ties, but with similarly close relationships, to intervene. The court disagrees with Hawkinss contention that this definition is unconstitutional after the U.S. Supreme Courts decision inObergefell v. Hodges, 135 S. Ct. 254 (2015), and its progeny. Virginias definition does not discriminate between same-sex and opposite-sex couples. If the couple is not married, the non-biological/non-adoptive partner is not a parent, irrespective of gender or sexual orientation. It is true that when Hawkins and Grese began their relationship, Virginia law barred Hawkins and Grese from marrying, but the record does not indicate that this was the sole reason they remained unmarried. The relevant characteristics driving the parent classification here are entirely rational: People are considered parents on either biological or adoptive grounds, and parties without these qualities retain a fair legal method to intervene if a parent is unfit. Though Hawkins undoubtedly has a close relationship with B.G. and is in a sympathetic and difficult position, the circuit court did not violate her constitutional rights by declining to recognize her as a parent of B.G. The entire basis ofObergefellis the significance and importance ofmarriageas an institution that should not be withheld from same-sex couples. Were this court to carve out an exception in this admittedly exceptional case, it is clear that the constitutional presumption of parental fitness would begin the process of death by a thousand cuts. The court certainly acknowledges that society has evolved new family structures, while simultaneously concluding that qualitative and qualitatively assessing which among a kaleidoscope of those structures should be given legal recognition is more properly the province of legislators than the courts, andObergefelldoes not require a different conclusion. It would be ironic for the court to hold thatObergefell, which was primarily concerned with normality for same-sex families, should become a tool for the erosion of a family structure based on marriage. Were the court to adopt the know it when we see it, special circumstances definition of parentage urged by Hawkins, it is not hard to imagine profound consequences for society and the courts if a parent knows that an ex-wife, ex-husband, ex-boyfriend, ex-girlfriend, former nanny, au pair, or indeed virtually anyone not related to their child through biology or legal adoption, can be placed on equal footing as a biological or adoptive parent solely through a significant emotional bond with the child. More fundamentally, Hawkins did not adopt B.G. during her relationship with Grese, and she concedes that the parties made no attempt to marry. The record does not contain support for a retroactively-recognized constructive marriage. Hawkins is not a parent to B.G., and the circuit court did not err in reaching that conclusion. Parentalpresumption The court does not agree with Hawkinss argument that the presumption in favor of Greses custody of B.G. is overcome by the circuit courts findings that Hawkins and Grese intended to create a family, that Hawkins and B.G. share a parent-child bond, and that B.G would be harmed if that bond was severed. These considerations may be special circumstances under the Supreme Court of Virginias decision inBailes v. Sours, 231 Va. 96 (196), but they do not constitute an extraordinary reason for taking a child from its parent in this case because Grese herself has remained a consistent parental presence in B.G.s life. That B.G. would benefit from a continuing relationship with Hawkins which he will have through visitation does not rebut the presumption that Grese is a fit mother capable of making decisions for her child. The circuit courts judgment that Hawkins was not B.G.s parent and that her evidence was insufficient to rebut the parental presumption in favor of Greses custody of B.G. is not plainly wrong and therefore should not be overturned. Affirmed. Hawkins v. Grese, Record No. 041-17-1, Feb. 13, 201; Va. App. (Humphreys); Va. Beach Cir. Ct. (Frucci). Elizabeth Lynn Littrell for Appellant; Brandon H. Zeigler for Appellee. VLW No. 01-7-032, 20 pp.

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Title Annotation:Virginia
Author:Lightle. Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Feb 19, 2018
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