809 S.E.2d 441
Va. Ct. App.2018Background
- Hawkins and Grese were long-term, unmarried same-sex partners; Grese gave birth to B.G. via assisted insemination in 2007; Hawkins never adopted.
- The parties co-parented B.G. until their 2014 breakup and then informally shared custody for two years; Grese later cut off Hawkins’ contact.
- Hawkins filed for custody/visitation in JDR court (Feb. 2016); JDR court awarded joint legal and physical custody and found removal of either adult would harm B.G.
- Grese appealed to the circuit court, which held Hawkins was not a legal parent (Virginia rejects de facto/psychological parent doctrines) and that Hawkins failed to rebut the presumption favoring the biological parent’s custody.
- Circuit court expressed concern about harm to B.G. from separation but concluded Virginia law required awarding custody to Grese; Hawkins appealed.
Issues
| Issue | Plaintiff's Argument (Hawkins) | Defendant's Argument (Grese) | Held |
|---|---|---|---|
| Whether Hawkins is a legal parent of B.G. | Her functional parental role in a planned same-sex family and Obergefell/Pavan principles establish parental status | Virginia defines “parent” by biology or legal adoption; Hawkins never adopted and is thus not a parent | Hawkins is not a parent; Virginia law ties parentage to biology or adoption and courts will not create a de facto parentage rule |
| Whether the circuit court’s refusal to recognize Hawkins as a parent violated Fourteenth Amendment liberty/equal protection | Denying recognition infringes parental autonomy and discriminates against former same-sex partners | Classification is rationally related to legitimate state interests; applies equally to unmarried different-sex couples | Rational basis applies; the circuit court’s judgment was constitutional under rational basis review |
| Whether Hawkins has standing to assert B.G.’s constitutional rights (third-party jus tertii) | She has a close relationship with B.G. and may assert his association rights | Hawkins is not a parent under state law and Commonwealth standing doctrine bars third-party assertion absent narrow exceptions | Hawkins lacks jus tertii standing in Virginia to assert B.G.’s rights; guardian ad litem and Code §20-124.1 provide avenues to protect the child |
| Whether Hawkins demonstrated "special facts and circumstances" to rebut presumption favoring biological parent custody | Intention to form a family, strong parent–child bond, and expert testimony of harm if bond severed justify taking custody from Grese | Grese remains a fit, continuous parent; Hawkins’ bond and potential harm do not meet Bailes extraordinary-facts threshold | Hawkins failed to show clear-and-convincing special facts to rebut parental presumption; circuit court did not err |
Key Cases Cited
- Meyer v. Nebraska, 262 U.S. 390 (recognition of family/child-rearing as Fourteenth Amendment liberty)
- Pierce v. Society of Sisters, 268 U.S. 510 (parental rights and family autonomy)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (rational basis review framework)
- Romer v. Evans, 517 U.S. 620 (equal protection analysis re: sexual orientation under rational basis)
- Lawrence v. Texas, 539 U.S. 558 (privacy and same-sex conduct jurisprudence)
- Obergefell v. Hodges, 135 S. Ct. 2584 (same-sex marriage recognized; discussion of family stability but not a redefinition of parentage absent marriage or adoption)
- Pavan v. Smith, 137 S. Ct. 2075 (concerning birth-certificate benefits tied to marriage status)
- Troxel v. Granville, 530 U.S. 57 (parental rights cases and judicial deference to parents)
- Stadter v. Siperko, 52 Va. App. 81 (Va. App. rejection of de facto parent doctrine)
- Bailes v. Sours, 231 Va. 96 (circumstances required to rebut presumption favoring biological parent custody)