Attorneys Brandon Zeigler and Allison Anders at Parks Zeigler recently won a victory for parent’s rights in the Court of Appeals of Virginia. The case concerned a custody battle between a biological mother, Ms. Grese and her ex-partner, Ms. Hawkins. The two women were unmarried partners in a ten-year same-sex relationship. After years of trying to get pregnant, both before and during the relationship, Ms. Grese became pregnant through artificial insemination with the assistance of an anonymous donor and gave birth to, B.G., in 2007. The women raised B.G. in their shared home until they broke up in 2014. Following the breakup, Ms. Grese and B.G. moved into a new residence and Ms. Hawkins continued to see B.G. until late 2015 until events required Ms. Grese to terminate visitation as Ms. Grese felt it was no longer in B.G.’s interest to maintain the visitation. In 2016 Ms. Hawkins filed for custody and visitation of B.G. and the Virginia Beach Juvenile and Domestic Relations District Court awarded joint legal and physical custody of the child to both women but did not order any visitation.
Ms. Grese appealed the decision to the Circuit Court of Virginia Beach. The court determined that Ms. Hawkins was not B.G.'s parent under Virginia law, and awarded Ms. Grese full custody. The Court of Appeals upheld the Virginia Beach Circuit Court’s determination that Ms. Hawkins is not a parent to B.G. using the definition of “parent” under Virginia law.
So, what is a “parent” in Virginia? In this case, the Court of Appeals determined that while there is no express definition of a parent in Virginia, the Code contemplates a relationship to the child based on either (1) the contribution of genetic material through biological insemination or (2) legal adoption and that, where custody disputes are concerned, there are the only two definitions of what constitutes a “parent.” Pursuant to the Virginia Code, the relationship between a woman and a child may be established by proof of her having given birth to the child. The parent-child relationship between a child and a man may be established by a number of methods, including “scientifically reliable genetic tests,” a voluntary statement of the father and mother made under oath acknowledging paternity, often accomplished at the hospital following the child’s birth, or, in the absence of such acknowledgement, as otherwise provided by statute. See Virginia Code §20-49.1. Under the Assisted Conception Act in the Virginia Code, donors are generally not legal parents though they have contributed biological material, and, if the parties have a court-approved surrogacy contract, the intended parents are the parents of any resulting child. Legal Adoption may be accomplished in myriad ways, but requires, ultimately, a Final Order of Adoption naming the legal parents of the child.
Ms. Hawkins asked the Court to consider widening the definition of a parent given the landmark Supreme Court case Obergefell v. Hodges which legalized same-sex marriage in the United States. Ms. Hawkins argued that after Obergefell, non-biological parents in planned families comprising same-sex couples and their children are in fact parents of the children. However, the Court of Appeals, relying on prior case law, specifically declined to widen the definition of a parent to include “de facto” or “psychological” parents or non-parents who have had a significant familial-esque relationship with the child. If this were otherwise, a step-parent that has not adopted his/her partner’s child could move for custody after their marriage ends and be on the same footing as the biological parent.
A key issue in the case was the fact that Ms. Grese and Ms. Hawkins were never married. As the Court of Appeals discusses in the opinion, whether a couple is comprised of same-sex or opposite sex members, if the couple is not married, the non-biological/non-adoptive partner is not a legal parent. The Court determined that Virginia’s definition of a parent is not discriminatory against same-sex couples as it applies equally regardless of an unmarried couple’s gender or sexual orientation.
Why was the status of “parent” so critical in this case? When determining custody of children, courts utilize different standards and presumptions for different categories of petitioners. The Supreme Court has long held that parents have a fundamental right to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57, 65-67 (2000). According to the Supreme Court, so long as a parent is fit, the State should not inject itself into the private realm of the family. Troxel, 530 U.S. at 68-69.
In Virginia, when there is a custody dispute between a parent and a non-parent, there is a legal presumption that the best interests of the child will be best served when the child remains in the custody of its parent. In order for a non-parent to rebut that resumption, they must show by clear and convincing evidence one or more of five factors; (1) that the parent is unfit; (2) that there has been a previous order of divestiture; (3) that there has been a voluntary relinquishment; (4) that there has been abandonment; or (5) there are special facts and circumstances which constitute an extraordinary reason for taking the child from its parent. Only if the non-parent has proven one or more of those factors does the court move on to determining what custodial arrangement will be in the best interest of the child.
In this case, had the Circuit Court determined that Ms. Hawkins was a parent of B.G., she would not have had to rebut the presumption that B.G.’s best interests were served by remaining in Ms. Grese’s custody. In other words, the two women would have had the same status in the eyes of the court and the court’s analysis would have been limited to what was in B.G.’s best interests. However, the Circuit Court determined that Ms. Hawkins could not rebut the parent presumption, and therefore ordered custody to Ms. Grese, a decision that the Court of Appeals affirmed.
The Court of Appeals notes that there is a mechanism under Virginia law for non-parents to establish custodial and visitation rights. Pursuant to the Virginia Code, any “person with a legitimate interest” may petition for custody or visitation. Persons with a legitimate interest can include grandparents, step-parents, former stepparents, blood relatives and family members, as well as other parties who have a significant relationship with the child. However, while these non-parents have the right to petition, they must still overcome the presumption that the best interests of the child are served by remaining in the parent’s custody. If the person with a legitimate interest is asking the court for visitation, they must show that the child will suffer actual harm if the visitation is denied. These are difficult standards to overcome in the case of fit parents.
So what can same-sex couples do to protect their relationships with children in the event of a breakup? The first option is marriage, if that is the right step for the couple. If the couple is married, and a child is born during the marriage, each spouse will have parental rights of the child born “of the marriage.” If marriage is not the right step for the relationship, the non-biological parent can adopt the child. As the Court of Appeals and the Code of Virginia make clear, legal adoption is an approved method for defining a legal parent. In the case where a child is born prior to the marriage, it is wise to guarantee parental rights through the process of legal adoption. As the Court of Appeals notes, the act of a marriage does not automatically result in the spouses becoming legal parents of each other’s children, while a legal adoption is an incontrovertible method for defining parents.