Two recent cases in Virginia are illustrative of some of the issues following the 2015 landmark United States Supreme Court case of Obergefell v. Hodges, which opened the door for same-sex marriages in every state in this country.

In Appel v. Celia, a trial court decided that Virginia’s assisted conception law is discriminatory as currently written.  The law reads that only a husband (not spouse) of a woman who gives birth from assisted conception (such as IVF) is presumed to be the child’s parent.

The trial court decided it could either declare the law null and void or extend the benefits of the law to same-sex marriages.  Looking to what other states have done with similar laws and the intent of the legislature, the trial court ordered the benefits of the law must be extended to same-sex marriages.

While Appel v. Celia, showed a seemingly progressive move by the Commonwealth, Hawkins v. Grese, decided just five days after Appel v. Celia, and came out quite differently.

In Hawkins v. Grese, two women were in a long-term relationship and Grese had a baby in 2007, during the relationship. The couple never married, never had a civil union, and Hawkins never adopted the baby.  The two women raised the child together until the relationship ended in 2014.  A few years later, Grese ended all contact between the child and Hawkins.

After moving through the court system, the Virginia appeals court (one step higher than the trial court) rejected the argument that the Obergefell decision meant the women’s relationship was the equivalent of marriage and Hawkins was “constitutionally” a parent because of Obergefell.

Perhaps more relevant to future cases, the Virginia Court of Appeals failed to consider whether Obergefell had any retroactive application as the women’s relationship both started and ended before the 2015 Obergefell decision and stated that is a “question which has not yet been answered.”

In the upcoming months and years, it will be interesting to find out if this is a question the Virginia courts will ever answer.

Questions on this topic or any other family law issues? Contact us.

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