Visitation for lesbian partner not the biological parent

Visitation Memorandum
The purpose of this memo is to discuss the current state of the law applicable to the Custody in a case where the parents are lesbians, the children were born using artificial insemination from a sperm donor, and there was no adoption by the parent seeking visitation and custody matter. It is important to note that these cases are fact intensive. It is also our intent to identify the issues, the burdens of proof and good faith basis to bring an action to seek visitation on behalf of the client. It is our view that a good faith basis exists to bring the matter but that there are significant hurdles to cross to be successful in the effort.


Standing
As a general rule, a party seeking relief from the court “bears the burden of showing that he has standing for each type of relief sought.” Damon v. York, 1930-08-1 (Va. App. 8-11-2009). This is considered particularly true where the requested relief involves interfering with an individual’s constitutionally protected parental rights. Id. As a result, Virginia law imposes a threshold standing requirement for those individual’s seeking court-ordered visitation. Id.
Pursuant to the Virginia Code, an individual who is not the biological parent of a child may, under certain circumstances, petition for visitation with that child. Surles v. Mayer, 48 Va. App. 146, 162 (2006). Specifically, according to Code § 20-124.2, a trial court “may upon a showing by clear and convincing evidence… award custody or visitation to any other person with a legitimate interest. The Virginia Code defines a “person with a legitimate interest,” in pertinent part, as follows:
“Person with a legitimate interest” shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child.

Code § 20-124.1

In order to have standing to litigate the question of visitation, a litigant must prove she either fits within the specific categories mentioned above, or assert some persuasive ground for being treated as the “functional equivalent” of one of those categories. Damon, at 7. Thus, in order for an individual to qualify as a “person with a legitimate interest” they need not establish that they are a “grandparent, stepparent, former stepparent, blood relative or family member,” rather, the individual need only show that he maintains a relationship with the child similar in nature to those expressly listed in Code § 20-124.1. Surles, 48 Va. at 165.
The court in Surles stated that one way to undertake this analysis is to consider whether the relationship at issue is similar to, or has characteristics of, any of the relationships expressly listed in the statute. Id. In making such a determination, the court has noted that the phrase “person with a legitimate interest” should be broadly construed as to accommodate the best interests of the child. Id at 166. Ultimately, whether a petitioner’s relationship with a child is sufficient to qualify them as “person with a legitimate interest” is a fact-specific inquiry that must be resolved on a case-by-case basis. Id.
Since 2003 the Virginia Court of Appeals has addressed the threshold standing requirement several times, namely in Surles, Stadter and Damon. In Surles and Stadter the court found that both individuals petitioning for visitation qualified as “persons with a legitimate interest.” However, most recently in Damon, the court found that Damon failed to establish her status as a “person with a legitimate interest.”
In Surles, the court found that although Damon did not fall within the plain meaning of any of the terms of Code § 20-124.1, he was considered the “functional equivalent” of a former stepparent. The court considered the following factors in determining that Surles was a “person with a legitimate interest”: he resided in the same household as the child for almost three years, he maintained a relationship with the child’s mother similar to that of husband and wife, he served as the child’s primary father figure, he developed a close relationship with the child, and he and the child’s mother conceived another child together. The court noted that Surles and the child “developed a relationship similar to- if not closer than- that ordinarily established between a father and stepson.” See also Stadter, 52 Va. App. 81 (2008)(holding that the same-sex partner of the child’s mother had standing to petition for visitation where the parties lived together for almost five years, agreed to have a child through artificial insemination, shared prenatal expenses and responsibilities, and shared parenting responsibilities before the parties separated). This case is remarkably similar to our facts.
Conversely, in Damon the court held that the Petitioner, former girlfriend of the child’s mother for only 21 months, failed to establish her status as a “person with a legitimate interest.” The court found that Damon did not directly or indirectly qualify as having either a familial or stepparent relationship with the child by virtue of a void marriage to the child’s mother nor was she able to prove her status as the “functional equivalent" of any statutory category. In denying Damon standing, the court considered the mother’s testimony that Damon was merely an “adult presence” in the child’s life and her relationship with the child was not “particularly unique.” The trial court found Damon “may have been in a familial-type capacity of some sort that might be- or might have been the functional equivalent of one of the enumerated categories in the statute and, therefore, may have been at one time a person with a legitimate interest, that she was not at the time a person with a legitimate interest, that was not at the time of my ruling and for the relevant periods of time prior thereto.”
Constitutional Issues
Once the court has determined that an individual has overcome the threshold standing requirement to file a visitation petition, the court must determine whether the petitioner is entitled to visitation with the child.
In matters of custody, visitation, and related child care issues, the court’s paramount concern is the best interests of the child. Stadter v. Siperko, 52 Va. App. 81, 88 (2008). However, the court must also take into consideration that a parents’ right in raising their children is considered fundamental and thus protected by the Fourteenth Amendment to the Constitution. Id. The Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. Consequently, the statutory-best interests test typically applied in child custody and visitation determinations “unconstitutionally infringes on that fundamental parental right” if it authorizes a court to “disregard and overturn any decision by a fit custodial parent concerning visitation…” Surles, 48 Va. App. at 167.
The Supreme Court of Virginia has stated that in order for a parents’ fundamental rights to the protected, before visitation can be ordered over their objection, a court must find that actual harm to the child’s health or welfare would exist without court-ordered visitation. Williams v. Williams, 24 Va. App. 778, 784-85 (1997). Thus, the statutory- best interests standard is considered in determining visitation only after a finding of harm if visitation is not ordered. Id at 785. The non-parent petitioner must make the showing of actual harm by clear and convincing evidence. Stadter, 52 Va. App. at 94 (stating that the term “clear and convincing evidence” is defined as the measure or degree of proof that will produce in the mind of the trier of facts a firm belief or conviction upon the allegations sought to be established). Without a finding of harm to the child, a court may not impose its subjective notion of the “best interests of the child” over the objection of a child’s parent without violating the constitutional rights of that parent. Id. In situations where a parent objects to the visitation of a non-parent, the liberty interest of a fit parent takes precedence over the best interests of the child. Id at 785.
This actual-harm standard cannot be satisfied by a showing that it would be ‘better,’ ‘desirable,’ or ‘beneficial’ for a child to have visitation with the non-parent. Id at 784. Furthermore, a vague generalization about the potential positive influence of the non-parent’s visitation cannot satisfy the actual-harm requirement. Griffin v. Griffin, 41 Va. App. 77, 84 (2003). To justify a finding of actual harm under the clear and convincing burden of proof, the evidence must establish more than the obvious observation that the child would benefit from the continuing emotional attachment with the non-parent. Id at 85. Although losing a relationship and visitation with a non-parent may cause some measure of sadness and a sense of loss, which could be emotionally harmful, that is not what is meant by actual harm to the child’s health or welfare. Id. The non-parent must show actual harm to the child by clear and convincing evidence. Id.
The Court of Appeals of Virginia has addressed the actual harm standard most recently in the cases of Griffin, Surles, and Stadter. In all three cases, the Court of Appeals ruled that the petitioner failed to satisfy, by clear and convincing evidence, the actual harm test.
In Griffin, Husband and Wife married in 1996 and later separated in 1997. Griffin 41 Va. App. at 79. During their separation period, Wife became impregnated with another man’s child. Id. Wife incorrectly informed Husband that he was the father of said child. Id. Three months after the child’s birth, Wife moved out of the marital home but continued to allow Husband visitation with the child. Id at 80. Three months later, a paternity test established that Husband was not the child’s father and Wife denied Husband any further visitation. Id. Husband subsequently filed a petition with the court for visitation. The court denied such visitation, holding that the evidence did not support a finding by clear and convincing evidence of actual harm to the child’s health and welfare. Id at 85. The court stated that the evidence “at its best” went no further than supporting the inference that the child would “grieve the loss of the emotional attachment he has for his mother’s estranged husband and ‘could be’ emotionally hurt if visitation with him ended.” Id.
In Surles, Mayer and Surles began dating when Mayer’s son was ten months old. Surles, 48 Va. App. at 156. The couple eventually moved in together, and Surles served as the child’s primary father figure. Id at 157. The couple remained together for almost four years. Id. Following the parties’ separation Surles maintained contact with the child; however, Mayer decided to move the child out of state. Id. Following Mayer’s move, Surles filed a petition seeking visitation with the child. Id. The Court held that Mayer failed to produce any evidence- much less clear and convincing evidence- that would support a finding of actual harm to the child’s health and welfare. Id at 168. The Court stated that the evidence must establish more than the obvious observation that the child would benefit from the continuing emotional attachment with the non-parent. Id at 167. A “vague generalization” about the positive influence of the non parent will not satisfy the actual harm requirement. Id.
Most recently, the Court of Appeals addressed the issue of actual harm in Stadter v. Siperko. Stadter appealed the decision of the trial court which denied her petition for visitation with Siperko’s minor child. Stadter, 52 Va. App. at 85. Stadter and Siperko were in a cohabitating lesbian relationship for about 5 years. Id at 86. Sometime during their relationship, the parties agreed to have a child via artificial insemination. Id. Siperko gave birth to a child and the parties initially shared parenting responsibilities; Siperko served as the primary caregiver and Stadter provided substantial financial support. Id. The parties eventually separated. Id. Following the separation, Stadter continued to provide financial support and physical care for the child but Siperko refused to establish a binding visitation schedule. Id. Stadter subsequently filed a petition for visitation. Id.
At the hearing on the petition for visitation, Stadter called one expert witness who testified that the child had every potential to experience harm if visitation were not awarded to Stadter. Id at 87. However, Stadter’s expert did not meet with the child prior to his testimony, relied solely on the documentary evidence and the transcripts, and his testimony was contradicted by the testimony of Siperko’s expert witness. Id. The court denied Stadter’s petition for visitation, citing lack of sufficient proof of actual harm to the child. Id at 95. The court noted that the expert testimony for Stadter “dealt only in terms of potentiality…[i]ndeed, the harm he addressed was by definition theoretical, since he did not examine the child.” Id.
Thus, it is apparent that we will have to obtain evidence, an expert and fact witnesses to establish the actual harm the children are and will encounter. Assuming that such witnesses are available and or can be found we can differentiate ourselves from the holding in this case.