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Hawkins v. Grese

Court of Appeals of Virginia

February 13, 2018



          Elizabeth Lynn Littrell (Barbara A. Fuller; Lambda Legal Defense and Education Fund, Inc.; Fuller, Hadeed & Ros-Planas, PLCC, on briefs), for appellant.

          Brandon H. Zeigler (Allison W. Anders; Parks Zeigler, PLLC, on brief), for appellee.

          (Margaret V. Weaver; Weaver Law Services, on brief), Guardian ad litem for the minor child.

          Present: Judges Humphreys, Malveaux and Senior Judge Frank Argued at Newport News, Virginia



         Denise Hawkins ("Hawkins") appeals the custody determination of the Virginia Beach Circuit Court ("circuit court") awarding full custody of B.G. to his biological mother Darla Grese ("Grese").

         I. BACKGROUND

         Hawkins and Grese were unmarried partners in a ten-year, same-sex relationship. During this relationship they discussed having a child. Grese became pregnant via artificial insemination and gave birth to B.G. in 2007. The parties never married or formed a civil union in another state[1] 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. The parties informally shared custody of B.G. from that point for a further two years. Eventually, relations between Grese and Hawkins soured and Grese terminated B.G.'s contact with Hawkins.

         On February 24, 2016, Hawkins filed a petition for custody and visitation of B.G. in the Juvenile and Domestic Relations District Court ("JDR court") for the City of Virginia Beach. The JDR court awarded joint legal and physical custody to Hawkins and Grese as well as shared visitation, finding that B.G. considered both women to be his parents. The JDR court further found that B.G. was developing behavioral problems based on his separation from Hawkins, and two psychologists, as well as the guardian ad litem, testified that removing either Hawkins or Grese from B.G.'s life would cause emotional and psychological harm.

         Grese appealed the JDR court's decision to the Circuit Court of the City of Virginia Beach ("circuit court"). She initially appealed both the custody and visitation awards, but subsequently withdrew the visitation appeal. Addressing the remaining custody issue, the circuit court first determined that Hawkins could not be considered a parent based on Virginia's rejection of the de facto parent doctrine. It further held that Hawkins, as a non-parent, interested party, did not rebut the parental presumption in favor of Grese's custody of B.G. The circuit court couched these decisions in language that clearly showed grave concern that separation from Hawkins would cause B.G. continued harm but the circuit court concluded that the law of the Commonwealth left it little option. Hawkins now appeals the circuit court's decision, alleging that the circuit court erred in determining she was not a parent to B.G., that the circuit court violated her constitutional parental rights, violated B.G.'s constitutional rights, and finally, erred in finding she had not rebutted the parental custody presumption.

         II. ANALYSIS

         A. Standard of Review

         "Where, as here, a court hears evidence ore tenus, its findings are entitled to the weight of a jury verdict, and they will not be disturbed on appeal unless plainly wrong or without evidence to support them." Gray v. Gray, 228 Va. 696, 699, 324 S.E.2d 677, 679 (1985). Further, "the appellate court should view the facts in the light most favorable to the party prevailing before the trial court." Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995).

         B. The Constitutional Standard to be Applied

         Hawkins points to the landmark Supreme Court decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), and its progeny, including Pavan v. Smith, 137 S.Ct. 2075 (2017), to support her contention that "non-biological parents in planned families comprising same-sex couples and their children are in fact parents." Hawkins argues that by refusing to so hold, the circuit court has violated the liberty and equality guaranteed her by the Fourteenth Amendment.

         Hawkins' arguments regarding the manner in which her constitutional rights were allegedly violated are a bit convoluted. Hawkins asserts that

By declining to recognize [Hawkins'] status as a parent and perform a best interest determination, the Trial Court violated the liberty and equality guarantees of the Fourteenth Amendment. First, the Trial Court impermissibly infringed upon [Hawkins'] fundamental liberty interest in parental autonomy. Second, the Trial Court impermissibly imposed a barrier to former members of same-sex couples seeking recognition of their parent-child relationships that does not exist for members of different-sex couples, and thereby discriminated with respect to the exercise of a fundamental right.

         In other words, Hawkins apparently alleges that it is the circuit court's action itself, rather than the law of the Commonwealth it relied on, that is unconstitutional. While this is less common than challenging the constitutionality of a statute or regulation, it is certainly a legitimate argument, as the judiciary is considered a state actor for Fourteenth Amendment purposes.[2] However, it also narrows the focus of our analysis of these assignments of error.

         The United States Supreme Court in United States v. Carolene Prods. Co., 304 U.S. 144 (1938), introduced the concept that challenges to constitutionality of a statute or a state action should be judged under a tiered review system, with "narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution." Id. at 152 n.4. This footnote has evolved into the modern three-tiered constitutional review standard in which by default the laxest standard, rational basis review, applies. The highest standard, strict scrutiny, applies where "[w]here certain 'fundamental rights'" are involved, and requires that legislation or actions "limiting these rights may be justified only by a 'compelling state interest, '" requiring legislation and action "must be narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, 410 U.S. 113, 155 (1973). Such fundamental rights include not only those listed in the Bill of Rights but additional implied rights protected by the Fourteenth Amendment.

         Sexual orientation has not been characterized as a suspect or quasi-suspect classification deserving of strict scrutiny by the United States Supreme Court. 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. Romer v. Evans, 517 U.S. 620 (1996), overturned a Colorado constitutional amendment aimed at homosexuals using the rational basis test. Lawrence v. Texas, 539 U.S. 558 (2003), overturned Bowers v. Hardwick, 478 U.S. 186 (1986), and invalidated a Texas anti-sodomy law on the grounds that Bowers had too narrowly characterized the behavior at issue as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Lawrence, 539 U.S. at 566. Instead, the Lawrence Court apparently re-characterized the issue as derivative of the fundamental right to privacy but did not articulate a standard of review for invalidating the law. Id. at 578. In her ...

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