Biology and Illegitimacy

Abstract

DENISE Hawkins and Darla Grese were in a committed, unmarried same-sex relationship when they decided to have a child together. Darla became pregnant with donor sperm and gave birth in 2007. For several years, Darla and Denise raised the child together in the home that they shared. But in 2014, Darla and Denise ended their relationship. At that point, the two women continued to share parenting responsibilities as part of an informal custody arrangement.

Two years into this arrangement, however, Darla refused to allow Denise to see their child. Cut off from the son she had been raising for almost a decade, Denise went to court and filed a petition for custody. Two psychologists, as well as a guardian ad litem, testified that ending the child's relationship with Denise would inflict psychological and emotional harm on him. In fact, the court found that the child had developed behavioral problems as a consequence of his separation from Denise.

Nonetheless, the Virginia Court of Appeals determined that Denise was not a legal parent and thus was not entitled to custody or visitation over Darla's objections. Because Denise was not a biological parent, was not married to the biological mother, and had not adopted the child, Virginia law did not recognize her as a legal parent. Moreover, the court asserted that Darla, as the child's biological mother, had constitutional authority to exclude non-parents. Accordingly, she was entitled, as a constitutional matter, to shut Denise out of their son's life. The court severed the child's relationship with one of his parents, even though it was clear that he would be harmed.