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Parental Control

In a case that could have ramifications for all single parents, a mother battles against her ex-girlfriend's efforts to see her daughter.

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Kelly Decker has lost $149,000. And counting.

She's lost her Glen Allen home. She's lost her privacy.

But she'll be damned if she'll lose even one day with her daughter.

In an unusual case unfolding in Henrico Juvenile and Domestic Court, Decker is battling her ex-girlfriend Cathy McCarthey over visitation with Decker's daughter, who is 5 years old.

Biologically and legally, the child is solely Decker's. Unlike the situations in other recent same-sex visitation cases in Virginia, Decker never had any union, marriage or other legal relationship with her ex-girlfriend, she says: “This child is 100-percent mine.”

But Virginia law allows any “person with a legitimate interest” — a deliberately broad term — to petition for visitation with a minor child.

Henrico Judge Denis F. Soden granted McCarthey standing to do just that. Now Decker and McCarthey are locked in a courtroom fight with the highest stakes — one that eventually could set legal precedent for other Virginia parents, gay or straight.

Kelly Decker always wanted to be a mother. Wanted it so badly, she was determined to do it with or without a partner.

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For more than a year, Kelly Decker has been involved in a court case over her ex-girlfriend's visitation rights with her daughter, K. “It's consumed my whole family's life,” Decker says.

Since 1998 she'd tried to conceive using anonymous donor sperm, and had gone through several rounds of in vitro fertilization with the help of Shady Grove Fertility Center and Fairfax CryoBank. Decker dated several people during this period, she says, both men and women.

In 2004, at 39 years old, she got the news she'd been waiting for: She was pregnant. Decker's daughter, K., was born in January 2005. (The child's full name is being withheld to protect her identity.)

Decker started dating McCarthey in 2002, she says. Their relationship was long-distance at first; when K. was born, Decker lived in Northern Virginia while McCarthey lived in Richmond.

Decker was ecstatic to be a mother at last, she says, and she wanted to include her girlfriend in her joy. The birth announcement sent to family and friends said “Proud Parents — Kelly & Cathy.” Decker even gave K. the middle name McCarthey. (She later changed it to Marie.)

Decker, a former elementary school teacher who was working in administration for Fairfax County Public Schools at the time, arranged to take off work for the first year of K.'s life. Decker moved to Richmond and began living with McCarthey in a stately brick house the two had jointly purchased in Glen Allen. Decker's parents, retired, also lived in the house that first year and helped care for K., Decker says.

Once the two women were living together, Decker says, she realized she didn't know McCarthey as well as she'd thought. The two went to counseling to try to work out their differences. Then in 2007, when K. was 2 and a half, Decker says she broke up with McCarthey.

The house proved difficult to sell, so McCarthey moved her things to the third floor and continued living there. In February 2009, Decker and her daughter moved out. In May 2009, McCarthey moved out and Decker purchased the house, buying out her ex-girlfriend's interest, and moved back in.

Decker thought that was the end of the story. She was wrong.

On Oct. 1, 2009, McCarthey filed a petition for an emergency court hearing, requesting custody or visitation with K.

The petition outlined several reasons: namely, that Decker and McCarthey “shared a household and union and shared in the raising and caretaking of the minor child,” and that K. “has always referred to the Plaintiff as ‘Mommy,' and the Plaintiff has been a wonderful mother to the child since the child was born.”

Decker, the petition said, had denied McCarthey contact with K. since February 2009, and charged that K. had “suffered actual harm” from the separation, after having spent “every day” with McCarthey since her birth.

McCarthey's lawyer declines to comment.
Decker's lawyer fired back a week later with an objection, moving the court to deny McCarthey's petition. K. “is and always has been in her mother's sole care and custody,” the objection states. According to Virginia law, the objection said, McCarthey did not qualify as a person with a legitimate interest in the custody of the child.

Furthermore, the objection says, there would be “substantial harm” in involving McCarthey in K.'s life. To protect their privacy, Decker says, she doesn't want to talk about the details. It's enough to say that “I felt that it was not an appropriate relationship for my daughter or myself,” she says.

A Dec. 21, 2009 memorandum requesting the dismissal of McCarthey's case concluded with these words: “This case is not about lesbian rights or lesbian relationships. This case is about a mother's constitutional right to determine what is in her child's best interests and who she will spend time with and when and how.”

In January, Judge Soden ruled that McCarthey had legal standing to petition for visitation. McCarthey has asked to see K. on Tuesdays, on Thursdays, every other weekend and on major holidays, Decker says.

The case has been going on for more than a year. The core question the court is trying to determine is this: Would K., by all accounts a happy and secure child, suffer “actual harm” if she never sees McCarthey again?

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Joan and Earl “Deck” Decker sold their retirement home in South Carolina to be close to Kelly, their only daughter, and K., their only grandchild. 

The question of who has a legal right to see a child has gone all the way up to the United States Supreme Court and involves one of the most fundamental rights set forth in the U.S. Constitution.

Troxel v. Granville, a case the U.S. Supreme Court heard in 2000, is considered the landmark case in non-parental visitation cases. The Troxels, a couple whose adult son had died, petitioned for visitation with their grandchildren — the two daughters their son had with his ex-girlfriend Tommie Granville.

Washington state law permitted “any person” to petition the court for visitation, and authorized the court to allow visitation whenever it served the best interests of the child. The Troxels were granted one weekend per month with the granddaughters and one week every summer.

But the Washington Supreme Court, and later the U.S. Supreme Court, ruled that the state law was unconstitutional.

In this age it's difficult to describe “an average American family,” Supreme Court Justice Sandra Day O'Connor wrote in her opinion. Laws governing non-parental visitation exist in many states to protect the relationships children form with their grandparents, relatives and other third parties, she noted.

However, O'Connor wrote, the 14th Amendment of the Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. And the interest of parents in the care of their children, O'Connor wrote, “is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

So, the Supreme Court ruled, “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

But the book doesn't close there.

For one thing, the definition of “parent” can be fluid. Virginia law specifically recognizes adoptive parents, genetic parents and biological parents, including parents of children conceived through surrogacy or assisted conception. Legally, Kelly Decker is K.'s sole parent; her name is the only one on K.'s birth certificate.

Some legal scholoars argue there are “de facto parents.” According to the American Law Institute, this means someone who lives with a child for not less than two years and shoulders a majority, or an equal share, of the caretaking functions for the child.

But Virginia law does not recognize de facto parents. In Stadter v. Siperko, a 2008 Virginia case involving a same-sex couple, a woman claimed status as a de facto parent to petition for visitation with her ex-girlfriend's young child.

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Kelly Decker's daughter was born in 2005. “My kid is just a great kid,” Decker says.

That case went all the way to the Virginia Court of Appeals, which ruled against the non-biological parent. It threw out the de facto standing and found that she “had not met her burden to prove by ‘clear and convincing evidence' that child would suffer ‘actual harm' if visitation were not awarded.” The nonbiological parent did not receive visitation.

In another well-known case, Damon v. York, the Virginia Court of Appeals held that a woman who married a child's biological mother in Canada and lived with the mother for 21 months was not a “person with a legitimate interest,” and thus could not seek visitation with the child.

But neither of these cases — in fact, no case on the books in Virginia — is quite like McCarthey v. Decker. Family court is not a court of record, so the case would not set legal precedent unless it rises to the circuit court or appeals court.

In Stadter v. Siperko, according to the court records, the two women had planned the child's conception together and shared prenatal expenses. In Damon v. York, the biological mother, who already had a young child, legally married her girlfriend in Canada, a marriage Virginia did not recognize.

Although McCarthey was at one time named as K.'s guardian in Decker's will, the two women never had any union, contract or legal relationship, Decker says. And the fitness of Decker's parenting isn't at issue in the case.

The U.S. Constitution permits a state to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child, the Washington Supreme Court found in the Troxel v. Granville case.

So what does “harm” mean?

In cases in which a fit and biological parent objects to visitation from a third party — nonbiological, or de facto parents — the standard for proving harm is high, says Dale S. Margolin, an assistant clinical professor of law at the University of Richmond and director of the Jeanette Lipman Family Law Clinic. Margolin isn't involved with the McCarthey-Decker case.

Basically, she says, the third party must “show that this child would be ruined for life if they did not see this person.”

In the McCarthey-Decker case, the court appointed a psychologist to determine if K. would suffer “actual psychological harm” if she is prevented from seeing McCarthey.

It's a complicated determination. One main cause of harm mentioned in the case is “ambiguous loss,” meaning loss or grieving without closure or clarity.

Decker rejects the idea that K. is suffering ambiguous loss. K. was only 2 and a half when Decker terminated her relationship with McCarthey, Decker says. The only reason McCarthey was there until 2009, Decker says, was that they couldn't find a buyer for their house. At that point her daughter understood perfectly well that McCarthey, whom she knew only as a family friend (not as her mother's ex-girlfriend) would no longer be living with them, Decker says.

“Mommeeeee!”

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K. runs through the spacious Glen Allen house Kelly Decker once jointly owned with Cathy McCarthey. Decker and her parents are moving out this week.

K., in a butterfly T-shirt and light-up shoes, runs to greet her mother when Decker walks in the door of their Glen Allen home. Decker sweeps her up in a hug.

K. is a rambunctious little girl with a wide smile. She talks in a rapid patter about her Christmas list, the neighbor's dog, her Himalayan cat Sparkles. Her favorite color, she says, is “rainbow.”

Although K. has had several visits with counselors and psychologists, she doesn't know anything about their legal struggles, Decker says. She and her parents are careful not to discuss the matter in K.'s presence, she says.

K. hops on her pink Barbie bicycle, which is parked in the playroom next to a miniature pink Mini Cooper. She flicks on a pink radio hanging from the handlebars and pedals madly around the house.

There's plenty of room to ride now that they've found a buyer for the house: Most of the furniture's in storage, and large blue plastic bins are stacked against the walls. The Deckers are moving into an apartment this week.

 K. is much like her mother was at the same age, says Decker's mother, Joan Decker: energetic, compassionate and bright. “I think she's me,” Kelly Decker says — “with a little extra oomph.”

Five women sit in a row on the wooden bench outside courtroom 3 in the Henrico Juvenile and Domestic Court building off East Parham Road.

Joan Decker, Kelly's mother, twists a scrap of paper in her hands until it's sharp as a thorn. Pat Owings, Joan's former neighbor, softly consoles her. V Magazine Editor Annie Tobey, who is assisting Decker with her case, has brought along a fat stack of books on custody law. Karen Borders, a grimly cheerful former cop, has traveled here from Los Angeles, hoping Judge Soden will allow her to present the family risk assessment report she's prepared.

And there in the middle is Kelly Decker. She wears a light green sweater set, balancing a thick blue binder on her lap.

The Oct. 26 hearing is about to begin and Decker's lawyers have informed her they'll be formally withdrawing from the case before the judge. Decker, after spending tens of thousands of dollars on legal bills, says she can no longer afford to pay them. So today she'll act as her own attorney.

Borders offers some advice. Stay calm, she says. Take a deep breath if you realize you're raising your voice. “It's always ‘Your Honor,'” she says. “‘Your Honor.'” Decker nods.

The brown-shirted bailiff swings wide the door. Decker disappears into the small courtroom, carrying the binder and a plastic box full of files. It's 5:17 p.m.

“COURT IN SESSION DO NOT DISTURB WAIT FOR BAILIFF,” declares a sign on the door.

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Kelly Decker has studied what happened in other Virginia cases involving same-sex couples and visitation. “There's not one case, at all, that comes close to mine,” she says.

The women are accustomed to staring at this sign. Other nights, as many as 20 of Decker's friends and supporters have come to sit on this bench, in case the judge called them to give testimony. Tonight was supposed to be a night to hear witnesses, Decker says, but two days earlier they found out it wouldn't be.

One night they were here from 4:30 till 11:30. After hours, the sheriff's deputies won't let anyone leave the courthouse and return, so they sought dinner from the vending machine — only to discover they had no quarters. You can't bring in drinks either. The water fountain down the hall is not enough to keep their mouths from going dry.

Decker is Joan's only daughter. When Decker first told her parents she was dating women, Joan felt as if a bomb had gone off, she says. She and her husband, Earl “Deck” Decker, went to counseling and worked through it.

When Decker became pregnant, her parents were living in Murrells Inlet, S.C. They came to Northern Virginia for the birth, and for the first year of K.'s life they lived with Decker and McCarthey and helped care for the baby.

Soon afterward, they sold their retirement home and bought a house in Midlothian to be closer to Decker and their adored granddaughter. To help support their daughter, they moved into the Glen Allen home in 2009 after McCarthey moved out.

The case has been hard on Decker's family. In January, when Decker received the news that McCarthey had been granted legal standing to petition for visitation, she recalls how she and her parents sat on the sofa in a daze, eating pepperoni pizza and trying to process the news. Her father complained of heartburn. They took him to the hospital that night, where doctors discovered he'd suffered a massive heart attack and needed open-heart surgery. He didn't come home for two months.  

“Our lives have just been shattered,” Joan says. Her eyes shine with tears.

At 7:13 p.m., nearly two hours after the hearing began, the bailiff calls in the ex-cop, Karen Borders.

Joan clasps her hands. “Oh God,” she says. She hopes that's a good sign.

Borders has been hired by Decker to conduct a family risk assessment report. Even though the judge has called her into the courtroom, that's no guarantee he'll accept the report as evidence.

Borders has never seen a case like Decker and McCarthey's, she says, in which an ex with no biological ties to a child seeks custody. “They're usually trying to get out of having custody,” she says.

At 8:05, Borders comes out of the courtroom. She shrugs.

Judge Soden allowed her to present her credentials, she says, and will consider entering the report into evidence.

“This has got to work,” Joan says. “It's got to come out.”

At 8:40, Decker finally emerges, weary but optimistic.

It went well, she says. Though in the beginning, McCarthey's attorney objected to her acting pro se, Decker says.

“What's pro se?” Decker says she asked the judge.
Representing yourself, he explained.

The outcome of the McCarthey-Decker case is undecided. Three more hearings are on the calendar. Decker is searching for an attorney to take on her case pro bono, but law professor Margolin says that won't be easy.

“Most private attorneys don't want to get involved in these cases because they're messy and they take a long time,” Margolin says. The Lipman Family Law Clinic Margolin runs provides pro bono representation to indigent Richmonders in family law cases. But Decker, who is a financial adviser, is neither indigent nor a city resident.

Decker says she's frustrated with the system; with the expense, and the time, and the constant anxiety. “It's consumed my whole family's life,” she says. “It's really affected everyone.”

What she doesn't understand, Decker says, is this: When did her legal rights as a parent get taken from her? She never surrendered them, she says.

“There are reasons we get married. There are reasons we have adoptions,” Decker says: They're voluntary agreements people enter into to solidify relationships. And when something like her case can happen, she says, that dilutes the power of those legal processes.

If she and McCarthey had reached a point in their relationship where they both agreed McCarthey should be a co-parent, Decker says, they could have taken steps to try to make that happen.

While “second parent” adoptions are not permitted by Virginia law, same-sex couples can ask the court for a joint custody and co-guardianship order, adoption attorney Colleen Marea Quinn says. While this order doesn't grant all the same rights a legal parent would have, it does give both people the authority to serve as a child's legal custodian and make medical and other parental-type decisions for that child.

Not every court will grant this order in every situation, Quinn says. “It's not a lock. It depends on the judge and the case.” She's successfully petitioned judges in Richmond and Henrico County, and knows another attorney that's has had success in Hanover County.

Decker knows some people may hear about her case and think, “Oh, here's just another lesbian couple, and they got themselves into it.” But the ramifications of her case aren't limited to same-sex couples, she says. Decker reasons that any single parent who cohabitates with another adult could find themselves in the same situation.

What about all the women who decide to have a child on their own and still want to date? What about single mothers who bring a roommate, or a nanny, into their home? What legal risks do they run by introducing a new person into their child's life?

Or think of it this way, she says: If someone wants a child, why would he or she go through the adoption process, “when you can just find a cute person with a cute kid and file for custody?”

She wants people to hear her story, she says, because she's desperate to protect her daughter. She wants them to think: “This could happen to me.” S

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