COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Annunziata
Argued at Chesapeake, Virginia
HOPE KATHLEEN DAMON
OPINION BY
v. Record No. 1930-08-1 JUDGE D. ARTHUR KELSEY
AUGUST 11, 2009
CHRISTINE YORK,
MITCHELL J. PARKER, JR. AND
HEATHER CHAPMAN, F/K/A HEATHER YORK
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Stephen C. Mahan, Judge
Douglas Fredericks for appellant.
No briefs or argument for appellees.
Margaret V. Weaver, Guardian ad litem for the child.
Against the wishes of the child and both her biological parents, the appellant — a former
live-in girlfriend of the child’s mother — sought court-ordered visitation with the child. After
conducting an evidentiary hearing, the circuit court held the appellant was not a “person with a
legitimate interest” under Code § 20-124.1 for purposes of obtaining court-ordered visitation.
The appellant argues the circuit court erred because the evidence established, as a matter of law,
a statutory right for her to seek visitation. We disagree and affirm.
I.
When reviewing a circuit court’s decision on appeal, “we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle
requires us to discard the evidence of the appellant which conflicts, either directly or
inferentially, with the evidence presented by the appellee at trial.” Brandau v. Brandau, 52
Va. App. 632, 635, 666 S.E.2d 532, 534 (2008) (citation omitted).
During their marriage, Mitchell J. Parker, Jr. and Heather York had a baby girl in 1996.
They divorced in 2000. The child lived with her mother and had visitation with her father. In
October 2002, the mother allowed her girlfriend, Hope Kathleen Damon, to regularly stay
overnight. Less than a year later, Damon and the mother briefly traveled to Canada and got
married under a Canadian law authorizing same-sex marriage. The child stayed with her mother
and the mother’s girlfriend for about a year and nine months. During this period, the maternal
grandparents claimed Damon alienated the mother from her family, alienated the child from her
father and both sets of grandparents, and falsely reported that the child had a bipolar disorder.
The child’s behavior and performance in school began to suffer.
In 2003, the Department of Social Services learned that the child (then seven years old)
was frequently home alone after school unsupervised. DSS initiated an investigation and
discovered various conditions suggesting neglect, including a founded complaint that the child
was self-medicating. The extended family became aware of DSS’s investigative findings and
decided to intervene.
In 2004, the child’s maternal grandmother filed a petition for custody in the Virginia
Beach Juvenile and Domestic Relations District Court. After hearing evidence, the juvenile
court ordered that the child be placed in the shared custody of her father and maternal
grandmother. In 2004, the juvenile court ordered the parties involved in the custody dispute (the
mother, father, and maternal grandmother) not to permit the child to have any “contact
whatsoever” with Damon.
The relationship between Damon and the child’s mother ended in 2005. In July 2006,
Damon filed a petition with the juvenile court seeking court-ordered visitation with the child.
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The child’s mother, father, and maternal grandmother objected to Damon’s request. To represent
the child’s best interests, the juvenile court appointed the same guardian ad litem who had
represented the child since 2004, spent over 78 hours investigating various allegations, and filed
a 28-page report detailing her recommendations.
Upon hearing the evidence, the juvenile court held Damon was not a “person with a
legitimate interest” under Code § 20-124.1 for purposes of obtaining court-ordered visitation
over the objections of the child’s parents and custodians. Given the sensitivity of the matters
discussed in its earlier 2004 custody hearing, the juvenile court sealed the transcripts of the 2004
proceedings and ordered the parties to return all transcript copies to the court.
Damon appealed the juvenile court’s order seeking a de novo review in the circuit court.
She served discovery requests on the child’s father, the child’s mother, and the child’s maternal
grandmother. The circuit court entered a protective order finding many of the requests overly
broad. The court ordered the mother, however, to answer several discovery requests that
arguably related to the question whether Damon was a “person with a legitimate interest” to have
standing under Code § 20-124.1. The court declined Damon’s request for an order compelling
discovery responses from the maternal grandmother. 1
The circuit court observed that standing under Code § 20-124.1 presented a “threshold
issue” that must be decided before reaching the ultimate issue of visitation. The court received
1
Damon argues the circuit court erred in failing to compel these discovery responses.
Because Damon failed to proffer, either to us or the circuit court, how this alleged error
prejudiced her, we will treat the circuit court’s ruling as harmless error, if error at all. See
Tazewell Oil Co. v. United Va. Bank, 243 Va. 94, 112, 413 S.E.2d 611, 621 (1992) (finding no
“showing of prejudice” or “abuse of discretion” when appellant had not “indicated what
additional evidence it expected to obtain in further discovery”); Helen W. v. Fairfax County
Dep’t of Human Dev., 12 Va. App. 877, 887, 407 S.E.2d 25, 31 (1991) (assuming “the parents
were entitled to discovery,” but finding no “prejudice from the denial of their discovery
motion”).
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into evidence the guardian ad litem’s report to the juvenile court 2 and accepted the guardian ad
litem’s proffer that the child desired to have no contact with Damon. The court also heard
testimony from the child’s mother opposing Damon’s bid for standing and from Damon in
support of it.
The child’s mother testified there had been no contact between the child and Damon
since the 2004 juvenile court order. 3 Prior to that, she continued, Damon was merely “an adult
presence” in the child’s life during the brief relationship between herself and Damon. Damon
was “my girlfriend at the time and lived with us during that time,” the mother explained. The
child “has as close a relationship with many of my friends at this moment,” the mother pointed
out, as she previously had with Damon. “I don’t see it as being any different than that,” she
concluded.
When asked if “any unique bond” developed between the child and Damon, the mother
said they “were friendly together. Nothing particularly unique.” The mother stated that except
during “several months” in which Damon helped get the child ready for school in the morning,
Damon usually worked late and slept late. The mother picked the child up from child-care after
school, prepared her dinner, assisted with her homework, and put her to bed.
Damon took the stand and presented a very different rendition of her brief relationship
with the child. Aided by her supporting witnesses, Damon claimed she became a “stepparent” of
the child after the marriage ceremony. Her relationship with the child, Damon argued, could not
be described as a mere adult presence lacking any unique parental bond. She admitted she had
2
Damon raises no objection on appeal to the admissibility of the guardian ad litem’s
report. At oral argument on appeal, Damon’s counsel relied on certain aspects of the report and
argued consideration of the report was “fair game . . . for any court.” Hearing at 43:13 (Apr. 15,
2009).
3
Damon initially raised an objection to this order being submitted in the later circuit
court de novo appeal but withdrew the objection in a hearing on June 29, 2007.
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had no contact with the child since 2004 but explained she made no earlier effort to seek
visitation because of the juvenile court’s no-contact order.
The circuit court rejected Damon’s argument and found that she failed to prove she was a
“person with a legitimate interest” under Code § 20-124.1. The court acknowledged the
evidence showing Damon lived for a brief period with the child’s mother in a “familial-type
relationship” but noted that the “evidence is in conflict as to the nature and extent during that
period of time of Miss Damon’s role in that familial relationship and whether or not it rose to the
level of functional equivalent of a stepparent or not.”
The more relevant concern, the court clarified, was not the “relationship between the
petitioner [Damon]” and the child’s mother — but “rather the relationship between the petitioner
and the child.” Even though they “lived together” in a “familial-type relationship,” the court
stated, Damon could not prevail unless she maintained a “relationship with the child similar in
nature to the relationships enumerated in Section 20-124.1.”
The court noted the lapse of time between Damon’s last contact with the child in 2004
and her request, about two years later, for court-ordered visitation. The court said it was not
“ascribing fault or blame” but only treating it as a factor to be considered. After considering “the
specific facts that have been adduced in these proceedings,” the court concluded Damon failed to
prove her standing under Code § 20-124.1. So as to reinforce the fact-specific nature of its
ruling, the court added: “The decision is based solely upon the court’s evaluation of all of the
facts that have been presented as to the nature of the relationship between Miss Damon and [the
child], and that is the sole focus of the court’s inquiry and analysis as far as the court is
concerned . . . .”
Damon filed two motions to reconsider. First, she argued the court failed to find “Damon
was the functional equivalent of (if not an actual) former step parent.” Second, Damon claimed
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the court was essentially punishing her for respecting the juvenile court’s 2004 no-contact order
and waiting a period of time before seeking visitation.
Before entering a final order, the court clarified its ruling with several qualifications. The
court stated 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 of the statute and,
therefore, may have been at one time a person with a legitimate interest” but “she was not at the
time of my ruling and for the relevant periods of time prior thereto.” 4
II.
On appeal, Damon claims the circuit court erred as matter of law in not finding she was a
“person with a legitimate interest” under Code § 20-124.1. We disagree.
“As the United States Supreme Court has observed, the ‘liberty interest at issue in this
case — the interest of parents in the care, custody, and control of their children — is perhaps the
oldest of the fundamental liberty interests recognized by this Court.’” Griffin v. Griffin, 41
Va. App. 77, 82, 581 S.E.2d 899, 901 (2003) (quoting Troxel v. Granville, 530 U.S. 57, 65
(2000)). “The Due Process Clause protects the ‘fundamental right of parents to make decisions
concerning the care, custody, and control of their children.’” Id. We tread lightly on this subject
recognizing the magnitude of the parental interests at stake and the limited authority of the courts
to upend those ancient, constitutionally protected, parental interests.
As a general rule, the party seeking relief “bears the burden of showing that he has
standing for each type of relief sought.” Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149
(2009). That is particularly true where, as here, the requested relief involves the invocation of
coercive judicial remedies interfering with constitutionally protected parental rights. See
4
In response to this clarification, Damon’s counsel stated: “Judge, I would agree with
what the court just said is what the court said in different words” at the conclusion of the earlier
evidentiary hearing.
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generally 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 20.7, at
537 (2d ed. 1987) (noting that a non-parent has the “burden of proof” to establish any statutory
entitlement to court-ordered visitation).
Virginia law imposes a threshold standing requirement for those seeking court-ordered
visitation. Under Code § 20-124.1, only those with “a legitimate interest” can file visitation
petitions. Code § 20-124.1 provides that a 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.” 5
To have standing to litigate the question of visitation, the litigant must prove she either
fits within the specific categories mentioned in Code § 20-124.1 or assert some persuasive
ground for being treated as the “functional equivalent” of one of those categories. See Surles v.
Mayer, 48 Va. App. 146, 165, 628 S.E.2d 563, 572 (2006); see also Stadter v. Siperko, 52
Va. App. 81, 91-92, 661 S.E.2d 494, 499 (2008). As the circuit court correctly observed, both
the categorical relationships and their functional equivalents focus on the relationship between
the petitioner and the child.
In this case, Damon argues her “familial relationship” with the child gave her the status
of “quasi-stepparent” or the functional equivalent of “a stepparent or former stepparent.”
Appellant’s Br. at 17, 20. Inverting the same point, Damon also contends she should have been
considered a “functional equivalent of a family member” because she “stepparented” the child
during her marriage to the child’s mother. Id. at 20. For several reasons, we disagree.
5
Being recognized as a person with “a legitimate interest,” Code § 20-124.1, does not
mean the petitioner has any presumptive right to visitation. It merely means the petitioner has
standing to litigate the question in the first place, a far larger class of persons than the subset
which might ultimately prevail on the merits.
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To begin with, Damon failed to prove she fit within any specific statutory category
recognized by Code § 20-124.1. “The generally accepted definition of a ‘family’ is ‘a group of
persons connected by blood, by affinity, or by law.” Surles, 48 Va. App. at 179 n.6, 628 S.E.2d
at 571 n.6 (citation and internal brackets omitted). It follows that a “family member” can only be
a person related to the child by blood, affinity, or by law. Id. And a stepparent is related to the
child by affinity, id., that is, “by virtue of a marriage subsequent to that of which the person
spoken of is the offspring.” Kogon v. Ulerick, 12 Va. App. 595, 598-99, 405 S.E.2d 441, 443
(1991) (citation omitted). 6
Damon’s marriage to the child’s mother in Canada created neither a family nor a
stepparent relationship between Damon and the child. The marriage was “void in all respects”
under Virginia law. See Virginia’s Marriage Affirmation Act, Code § 20-45.3. To be sure, the
Virginia Constitution forbids our courts from recognizing any “legal status for relationships of
unmarried individuals that intends to approximate the design, qualities, significance, or effects of
marriage.” Va. Const. art. I, § 15-A. Damon, therefore, could not directly or indirectly qualify
as having either a familial or stepparent relationship with the child by virtue of Damon’s void
marriage to the child’s mother.
Damon similarly did not prove her status as a functional equivalent of any statutory
category. Damon was a former girlfriend of the child’s mother. Damon lived with the child’s
mother and the child for only 21 months — from October 2002 to July 2004. The mother
testified Damon was, at best, a mere “adult presence” in the child’s life. Damon and the child
were “friendly together,” the mother explained, but the relationship was not “particularly
6
See also Doyle v. Commonwealth, 100 Va. 808, 810-11, 40 S.E. 925, 926 (1902)
(“Affinity is the relation contracted by marriage between a husband and his wife’s kindred, and
between a wife and her husband’s kindred, in contradistinction from consanguinity, or relation
by blood.” (citation omitted)); Surles, 48 Va. App. at 179 n.6, 628 S.E.2d at 571 n.6; Brooks v.
Commonwealth, 41 Va. App. 454, 460, 585 S.E.2d 852, 855 (2003).
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unique.” To be sure, the mother added, the child “has as close a relationship with many of my
friends at this moment” as she previously had with Damon. “I don’t see it as being any different
than that,” the mother concluded.
Though Damon contested the mother’s evidence, the circuit court had no obligation to
accept Damon’s contrary version of events. The circuit court, therefore, did not err in refusing to
recognize Damon as the functional equivalent of a former stepparent. Cf. Surles, 48 Va. App. at
166, 628 S.E.2d at 572 (concluding petitioner was the “functional equivalent” of a stepparent
because he proved he and the child “developed a relationship similar to — if not closer than —
that ordinarily established between a stepfather and his stepson”).
Damon contends this reasoning fails to discern the hidden error in the circuit court’s
analysis. The circuit court, Damon asserts, refused to recognize Damon’s standing solely on the
ground that Damon “waited too long” after the juvenile court’s 2004 order to file a petition for
visitation — thus implicitly finding that Damon once was a person with a “legitimate interest”
under Code § 20-124.1 but lost that status over time. For several reasons, we disagree with
Damon’s characterization of the circuit court’s reasoning.
When “faced with a record of historical facts that supports conflicting inferences,” an
appellate court must presume, even if the factfinder does not expressly say so, that all such
evidentiary conflicts were resolved in favor of the prevailing party. Clanton v. Commonwealth,
53 Va. App. 561, 570, 673 S.E.2d 904, 909 (2009) (en banc) (citation omitted). We likewise do
not “fix upon isolated statements of the trial judge taken out of the full context in which they
were made, and use them as a predicate for holding the law has been misapplied.” Groves v.
Commonwealth, 50 Va. App. 57, 62, 646 S.E.2d 28, 30 (2007) (citation omitted). Instead,
“[a]bsent clear evidence to the contrary in the record, the judgment of a circuit court comes to an
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appellate court with a presumption that the law was correctly applied to the facts.” Bottoms v.
Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995) (citation omitted).
Damon claims the appellate presumption of correctness can be rebutted because the
circuit court’s statements imply that Damon was at one time the functional equivalent of a
former stepparent, but forfeited that interest by not pursuing the visitation petition earlier. This
assertion, we believe, reads too much into the court’s remarks from the bench. While the circuit
court appeared to accept that some sort of “familial-type relationship” existed, the court
expressly noted the evidentiary “conflict as to the nature and extent during that period of time of
Miss Damon’s role in that familial relationship and whether or not it rose to the level of
functional equivalent of a stepparent or not.” Nothing in the record suggests the court ruled in
favor of the mother (while rejecting her testimony) and ruled against Damon (while accepting
hers). We thus find no basis in this record to conclude, as Damon urges, that the circuit court
found Damon was ever a functional equivalent of a stepparent.
We similarly find no merit in Damon’s argument that the circuit court’s remarks from the
bench found she qualified as the functional equivalent of a “former” family member. Code
§ 20-124.1 includes no statutory category for former family members. The only statutory
category described in the past tense is “former stepparent,” Code § 20-124.1, a qualitatively
distinct class with a uniquely close bond to the child. Consequently, Damon bore the burden of
proving that her relationship with the child (not the child’s mother) was the functional equivalent
of a family member (not a “former” family member).
After hearing conflicting evidence on the subject and clarifying its holding upon
reconsideration, the circuit 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
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interest, that she was not at the time of my ruling and for the relevant periods of time prior
thereto.” To overrule this factual determination, we would have to hold as a matter of law that a
person who has previously held some arguable status as a de facto family member, even for a
brief period of time, thereby attains perpetual standing to seek court-ordered visitation even
when the relationship no longer exists. We decline to do so. Neither the text of the statute nor
the facts of this case warrant such an unprecedented conclusion. 7
Finally, we reject Damon’s argument that the circuit court essentially punished her for
obeying the juvenile court’s no-contact order from 2004 to 2007. The circuit court emphasized it
was not “ascribing fault or blame” but only treating it as a factor to be considered, an obviously
prudent consideration when judging the legitimacy of a petitioner’s effort to establish standing
for court-ordered visitation. The ultimate decision was based, the circuit court explained, “solely
upon the court’s evaluation of all of the facts that have been presented as to the nature of the
relationship between Miss Damon and [the child], and that is the sole focus of the court’s inquiry
and analysis as far as the court is concerned . . . .” 8
7
Damon complains that the circuit court improperly disallowed her explanation for the
delay (that she dutifully obeyed the no-contact order) under the res gestae exception to the
hearsay rule. The record, however, confirms the circuit court’s reply to this argument: “Now,
as far as I can tell, the court never precluded by its ruling Ms. Damon from testifying that she . . .
did do something or did not do something specifically because of her understanding or her belief
or her impression or anything else. In fact, that testimony, except to the extent that a specific
person said a specific thing, otherwise came in.” Hearing Tr. at 31-32 (Nov. 27, 2007).
8
Damon also argues that, at the evidentiary hearing, the guardian ad litem asked
questions during cross-examination implying that Damon had made certain statements to the
guardian during her investigation of the case. Damon’s counsel objected “to the extent that it
constitutes testifying” by the guardian. The circuit court overruled the objections stating, “It’s a
question, not testimony.” A circuit court, sitting without a jury, “is presumed to separate ‘the
admissible from the inadmissible,’ and to have considered only competent evidence.” Spencer v.
Commonwealth, 238 Va. 563, 569, 385 S.E.2d 850, 854 (1989) (citation omitted). The “training,
experience and judicial discipline” of a trial judge permits him to separate the admissible from
the inadmissible “even though he has heard both.” Eckhart v. Commonwealth, 222 Va. 213,
216, 279 S.E.2d 155, 157 (1981). Because nothing suggests the circuit court improperly treated
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III.
Because the circuit court did not err as a matter of law in finding Damon failed to
establish her status as a “person with a legitimate interest” under Code § 20-124.1, we affirm.
Affirmed.
the guardian’s questions as implied testimony, see generally Rakes v. Fulcher, 210 Va. 542, 548,
172 S.E.2d 751, 756-57 (1970), we reject Damon’s challenge on this point.
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