Ripples from Obergefell

Listen to this article

The U.S. Supreme Court in 2015, in the case of Obergefell v. Hodges, gave full marriage rights to same-sex couples.

This month, in two different courts in Virginia – the Court of Appeals and a Fairfax Circuit Court – jurists faced parenting issues to be decided in the wake of that decision.

The appeals court ruled Feb. 13 in Hawkins v. Grese (VLW 018-7-032) that a woman who never married the biological mother did not have a custody claim to a child she helped raise for seven years. The three-judge panel held that the term “parent” refers only to a relationship with a child through either biology or legal adoption.

Fairfax Circuit Judge Stephen C. Shannon decided Feb. 8 in Appel v. Celia (VLW 018-8-011) that a child born through assisted conception to a woman in a same-sex civil union that later became a marriage is considered a child “born of the parties” for purposes of a divorce decree.

Court of Appeals

The overriding issue for the couple in Hawkins was their failure to ever tie the knot in any fashion. Denise Hawkins and Darla Grese were unmarried partners in a 10-year, same-sex relationship. Grese became pregnant through artificial insemination in 2007.

The pair never married or formed a civil union in another state, but they raised the child together in their shared home until the relationship ended in 2014. The couple shared custody for another two years until Grese terminated her son’s contact with Hawkins.

Hawkins won joint custody in Virginia Beach Juvenile and Domestic Relations Court. In circuit court, however, Judge Steven C. Frucci gave full custody to Grese, despite misgivings about possible adverse effects on the child.

Turning to the Court of Appeals, Hawkins alleged that Frucci erred in determining she was not a parent, that the judge violated her constitutional rights and those of the child, and that he erred in finding she had not rebutted a parental custody presumption.

On behalf of Grese, Virginia Beach attorney Brandon H. Ziegler insisted the case had nothing to do with gay rights or the constitutionality of same-sex marriage. In an interview, he said his position was that Hawkins simply could not be considered a parent.

Writing for the Court of Appeals panel, Judge Robert J. Humphreys first analyzed the standard for reviewing sexual orientation issues, concluding that a rational basis test applied whether the issue was a rights violation or Hawkins’ status as “parent.”

Examining the use of the term “parent” in the Code, “it is clear that the term ‘parent’ contemplates a relationship to a child based upon either the contribution of genetic material through biological insemination or by means of legal adoption,” Humphreys wrote.

The U.S. Supreme Court’s landmark recognition of same-sex marriage in Obergefell v. Hodges in 2015 did not redefine the definitions of “parent” or “family,” the court continued.

“Hawkins suggests that the ‘special facts and circumstances’ of this case provide an avenue for carving out an exception in this admittedly exceptional case. However, were we to do so, it is clear to us that the constitutional presumption of parental fitness would begin the process of suffering a death by a thousand cuts,” Humphreys wrote.

He warned of a “Pandora’s box of unintended consequences” if a legal parent-child relationship were created simply by the amount of time with a child or the strength of an emotional bond.

The court found Hawkins lacked standing to assert the child’s constitutional right to be “raised and nurtured” by Hawkins. The judges also rejected the argument that special facts and circumstances existed to rebut the presumption in favor of Grese.

Ziegler – Grese’s lawyer – said Hawkins could not overcome the fact there had never been a legal union between the parties, even though they might have been able to get married in Washington or Maine before they separated.

“These parties were not married. They had the opportunity and they did not do so,” Ziegler said.

Hawkins was represented by an attorney with the Lambda Legal Defense and Education Fund Inc. in Atlanta and by Barbara A. Fuller of Virginia Beach. A spokesperson for the Lambda organization did not respond to a request for comment as of press time.

Fairfax County Circuit

In the Fairfax case, Valeria Appel and Lynne Celia entered into a civil union in Connecticut in 2006. The union was converted to a marriage under Connecticut law in 2010. The relationship soured and Appel sought a no-fault divorce in Fairfax.

Both women had given birth to children through assisted conception. One of the children in question was born to Celia in 2008 in Virginia. The other was born to Appel in 2012.

Appel submitted a proposed Final Decree of Divorce stating that there were no children born or adopted of the marriage. Celia, without counsel, appeared and contested that language. She contended the children should be acknowledged as children born of the marriage because they were born after the couple entered into a civil union.

Reviewing the Code, Shannon concluded the applicable language should be “born of the parties.” The judge then turned to Virginia’s assisted conception statute, Va. Code § 20-158, which provides rights to a husband of a gestational mother but fails to address the rights of a wife of a gestational mother in a same-sex marriage.

Obergefell and a later U.S. Supreme Court decision made that law unconstitutional, leaving the court with a choice of either nullifying the law altogether or expanding its benefits to same-sex marriages, the judge said.

“Generally, the preferred judicial remedy is to extend benefits, rather than to nullify a statute,” Shannon wrote.

While extending the assisted conception statute to same-sex marriage “would not undermine the legislative goal of preventing anonymous donors from asserting parental claims, nullifying the statute would have the opposite result,” the judge reasoned.

Shannon ruled that even the child born during the civil union, not during the marriage, should be considered “born of the parties.” He noted the term is used in Virginia’s no-fault divorce statute where it extends the required waiting period if there are children involved.

Acknowledging the importance of minor children in the no-fault divorce statute, Shannon concluded the older child was worthy of the designation.

“In reaching this conclusion, the Court’s ruling is a narrow one. The Court is not making a determination as to the parental rights of the parties, and the scenario is limited to a child of a gestational mother in a civil union, which later becomes a marriage by operation of law,” Shannon wrote.

Appel was represented by Stephanie Stinson of Manassas. She did not respond to a request for comment as of press time.