THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Steven C.
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
J. HUMPHREYS JUDGE.
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").
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 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.
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.
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.
Standard of Review
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).
The Constitutional Standard to be Applied
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
arguments regarding the manner in which her constitutional
rights were allegedly violated are a bit convoluted. Hawkins
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
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. However, it also narrows the
focus of our analysis of these assignments of error.
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
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