Kelly Decker, from Glen Allen in Henrico County, is the biological mother of a five-year-old girl. Kelly desires the ability to raise her daughter free from the interference of an unrelated third party. Reasonable, no? Unfortunately, Virginia law isn't so sure. Although the way in which Kelly's story came to be is unfortunate, her story is a chilling reminder of the growing threat facing parental rights. Kelly had dreamed for years of being a mother. Unmarried at 33, Kelly, while dating both men and women, began rounds of in vitro fertilization with an anonymous sperm donor. In 2002, Kelly began a same-sex dating relationship with Cathy McCarthey and, two years later, Kelly's artificial insemination was successful and she gave birth to a daughter. Although Cathy and Kelly shared no civil union or marriage, neither of which is recognized as legal in Virginia anyway, they bought a house and moved in together. Two years later, they broke up and Cathy eventually moved out. As far as Kelly was concerned, that was the end of her interaction with Cathy.
But two years after their breakup, Cathy filed suit in Henrico County Juvenile and Domestic Court demanding either visitation rights or custody of Kelly's daughter, despite the fact that Kelly is the only parent listed on her daughter's birth certificate. Cathy stated that Kelly's daughter would suffer harm from their separation.
Legally, what constitutes a parent and, therefore, merits visitation? Along with biological parents, Virginia law recognizes adoptive parents, genetic parents, and surrogate parents. Some states, excluding Virginia, include "de facto parents." De facto parents are typically defined as someone who lives with the child at least two years and shares at least 50 percent of the care taking role. In 2008, the Virginia Court of Appeals heard Stadter v. Siperko (see opinion) — a case in which a woman claimed to be a de facto parent of her ex-girlfriend's child and thus demanded visitation rights. In this case, the women had planned the child's conception together and split the cost. Despite this fact, the judge ruled that the child did not suffer significant harm from separation from the nonbiological parent and visitation rights were denied (LifeSiteNews.com).
In a similar case, Damon v. York (see opinion), the Virginia Court of Appeals denied visitation rights to a woman who married her girlfriend, who already had a child, because Virginia did not recognize the marriage that took place in Canada (see Style Weekly). Kelly and Cathy's case is unique in that the two shared no legal relationship, Kelly's name was the only parent listed on her daughter's birth certificate, Cathy never adopted Kelly's daughter, and Cathy did not share in the planning or cost of Kelly's conception.
Unfortunately, for Kelly and her daughter, in January 2010, a judge ruled that Cathy did indeed have standing to request visitation rights. The judge relied on a portion of Virginia law that reads:
In any case involving the custody or visitation of a child, the court may award custody to any party with a legitimate interest. ... "legitimate interest" shall be broadly construed to accommodate the best interest of the child.
By moving in with Cathy, Kelly — as determined by the judge — gave Cathy a "legitimate interest" in seeking visitation rights with her daughter. Even though the judge has not yet ruled on visitation, Kelly's daughter was scheduled to meet with Cathy and a counselor to "begin the possible re-unification process."
While Kelly's story is riddled with unfortunate choices and difficult issues, this struggle is ultimately about parental rights. Kelly, as the biological mother of her child, is fighting for the right to make decisions that are best for her child without unwelcome intrusion from unrelated third parties and activist judges. Courts should not allow for the usurpation of a biological (or adoptive) and fit parent's decisions, no matter what we may think of those decisions.
If the judge in Kelly's case rules against her, imagine what that could mean for a single mother who invites a babysitter or roommate into her home. Conceivably, the babysitter or roommate could claim "legitimate interest" in visitation rights, or worse, custody of the child. While there is strong precedent in Virginia due to Stadter v. Siperko and Damon v. York, Virginia's "legitimate interest" law is entirely too broad. Changes must be made to increase the protection of parental rights in Virginia.