Bucci & Dix

Child Visitation Denied To Alleged 'Stepparent' Because She Was Not A 'Person With A Legitimate Interest'

The Court of Appeals has denied child visitation to a lesbian former 'stepparent.'  In Damon v. York, husband and wife divorced, with one child.  Wife was awarded custody, and thereafter cohabitated with Appellant Damon.  The two were married in Canada under a same-sex marriage law.  After 21 months, the couple then broke up, and Damon sought visitation rights with the child.  She contended that she was a 'person with a legitimate interest' under Code Section 20-124.1, as she was an actual or equivalent of a stepparent.

The appellate court affirmed the trial court's denial of Damon's visitation request.  First, the court noted that under Virginia's Affirmation of Marriage Act, a Virginia courts must treat Damon's same sex marriage to wife as void.  Further, Damon failed to establish that she was the 'functional equivalent' of a stepparent, as she lived with the child for only 21 months, and the mother testified that Damon was merely an 'adult presence' in child's life.

Of particular note, Damon seized on comments made by the trial court judge that she may have been a functional equivalent of a stepparent  at one point, but was no longer at the time of the court's ruling.  Damon argued that she therefore had standing to obtain child visitation rights.  The Court of Appeals disagreed, noting that if it were to agree , it would have to hold that when someone attains status as a de facto family member, they then have a perpetual right to seek visitation.