HOME STATE – “PERSON ACTING AS A PARENT” – LORD MANSFIELD FATHERS.

Is a married, legal, but non-"biological" father "a parent" under the UCCJEA's definition of "home state"? Or "a person acting as a parent"?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) meets Lord Mansfield’s rule in an important holding by the Virginia Court of Appeals in O’Rourke v. Vuturo, 638 S.E.2d 124, 49 Va.App. 139 (12/19/06)

. In a very common old story, a pregnant mother had disclosed to her husband before the birth that not he, but a paramour, was the father, but they decided she should have the child and they should raise the child as their own, and the husband’s name was on the birth certificate. They continued to hold out the child as their marital child and the husband was very much involved in her daily care. But then the mother moved with the child to Maryland and two months later the husband filed for divorce. The mother took the position that the husband could not even ask for visitation, since he was not a parent, and that therefore the Virginia divorce court had no jurisdiction over this child and could grant him nothing. The trial court didn’t buy that and the mother appealed, but the Court of Appeals said that Virginia had home state jurisdiction under the UCCJEA, because §20-146.12 gives “recent-home-state” jurisdiction if the child upon the day of filing has been absent from Virginia less than six months and is absent because of having been removed by a parent or claimant and “a parent or a person acting as a parent continues to live in this Commonwealth.” The husband certainly was a parent under Lord Mansfield’s rule and certainly a “person acting as a parent.” He is a “person acting as a parent” as defined in §20-146.1. The court also noted that it was only after the petition for custody or visitation rights was filed that the mother challenged the husband’s paternity. But the Court of Appeals says that this father was presumed to be the child’s natural father because the child was born during the marriage and was so listed on the birth certificate. So Lord Mansfield lives, at least to that extent, if not for purposes of the Virginia UCCJEA. A question not addressed here (though resolved sub silentio in an earlier case) is the very important question whether the Virginia Court of Appeals chooses to find an invidious distinction between a parent (fewer rights) and a “person acting” (more rights) for purposes of UCCJEA exclusive continuing jurisdiction under §20-146.13.

For much more on the custody, visitation and standing aspects of this case, see the case note on the Virginia Family Law Appeals Blog.

Comments

[Robin Smith]

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http://theproperty.blogstream.com/v1/pid/414189.html