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.
But that wasn’t the end of the matter. After analyzing the “person acting as a parent” status of the little girl’s legal father for purposes of establishing it had custody jurisdiction, the Court of Appeals in O’Rourke v. Vuturo, 638 S.E.2d 124, 49 Va. App. 139 (12/19/06) then shifted into the mode of analyzing this matter under Virginia child custody law – a context in which the court in previous holdings has already thrown Lord Mansfield’s Rule out on its ear and declared that a man who marries a woman pregnant by another, or forgives his wife’s adultery and raises the child who was born in wedlock as his own has no standing whatever. The woman who wants to exploit the institution of marriage for mercenary reasons and use a husband simply as breeding stock for the child she owns exclusively has every legal right to do it, and the once-legal father who wants to have custody or visitation with the child he has raised just has to get in line with the other third-party claimants. So the Court of Appeals then went through the analysis of what third-party custody claims require under its current jurisprudence (and federal Constitutional law). Thus the wife, and her now-husband paramour, who had sought an order of exclusive custody to foreclose any visitation or other relationship between the little girl and the man she had always known as a father, were appealing -- and claiming that the court below erred by ordering an evaluation of whether the child would suffer “actual harm” if visitation with the original husband were denied. Three years into the marriage of Mr. and Mrs. Vuturo, the wife had had an extra-marital affair with Mr. O’Rourke and conceived this child. At four months, she told the husband she was expecting the child by O’Rourke, but they agreed to continue their marriage and raise this child as their own, putting Mr. Vuturo on the birth certificate. The couple held the child out as the biological child of both of them, and Mr. Vuturo was an attentive father, serving the child’s daily needs, working from his home so that he spent time with the daughter throughout the day, and he was the sole financial support of the child during the marriage. But three years after the child’s birth, the wife left him while he was away on a business trip, and moved in with the paramour in Maryland. When Mr. Vuturo filed for divorce, the court gave him temporary visitation with the child, but the custody proceedings were continued by the divorce decree. After the wife and the paramour married, becoming the O’Rourkes, they changed the child’s last name and began seeking to prevent Vuturo from having any contact with her, telling the child that he was bad and destroying all photographs of him. Wife asked not only for sole custody but also for alimony (though married to O’Rourke) and attorneys’ fees, and the boy-friend-now-second-husband sought leave to intervene in the case, requesting the trial court to deny any visitation. The trial court heard evidence from five experts and lay witnesses about the relationships of these adults with the child and the effect that denying Mr. Vuturo visitation would have on the child.
The law of course is that before visitation can be ordered over the objection of the child’s parents, the court must find actual harm to the child’s health and welfare from denial of such visitation, and only after that can it make a best-interests determination. The trial court made an exhaustive determination leading to its finding of “actual harm,” and made a similarly exhaustive determination that best interests of the child required this visitation. Two psychologists for Vuturo and the “independent evaluator” psychologist appointed by the Court and chosen by both parties at the request of the Guardian Ad Litem also testified to the severe harm from denial of visitation with this man. The O’Rourkes had Dr. Leigh Hagen testify to criticize the methodology and conclusions of one of the other psychologists -- but that’s all he could do. The Court of Appeals found the trial judge’s evaluation of the expert opinions to have been conscientious and thorough, and in no way an abuse of discretion. Similarly, nothing in the judge’s best-interests determination was an abuse of discretion. The girl had developed a close bond with Mr. Vuturo during the three years she lived with him believing him to be her father, and he had a good impact on her life, while the paramour had taken little interest in the child (though what the Court of Appeals then says is “he saw her less than 25 times during that time period, and each visit lasted only an hour or two.”) Before his intervention, he never even sought to establish paternity, and never asked for custody or visitation. The O’Rourkes raised the interesting argument that an opinion that a child will suffer “harm,” amounts to testimony as to the “causation of an injury,” and because the psychologists were not medical doctors, they were “not qualified to give an expert opinion regarding causation of an injury.” But the Court of Appeals pointed out that there is a difference between a physical injury and a psychological injury. These psychologists were qualified to testify about psychological matters.
They also raised the interesting argument that while §20-124.2(D) authorizes trial courts to order independent psychological evaluation to assist in the determination of best interests, that does not allow courts to order an evaluation in order to determine if there would be actual harm from a third-party visitation denial. Actually, however, the O’Rourkes had agreed to the appointment of the independent evaluator and endorsed this particular psychologist for the job. The Court of Appeals says that “the ordered evaluation falls under the scope of §20-124.2(D).” Finding that the “O’Rourkes’ case presented numerous questions that were not supported by law or evidence,” the Court of Appeals awarded attorneys fees and costs to Mr. Vuturo.
In holding for UCCJEA purposes that Lord Mansfield’s Rule still operates, the Court of Appeals speaks in such broad terms as to create some doubt as to its views on whether the Rule really has been killed off in other areas, saying (citing a 1989 case) “we note that at the time Vuturo filed his initial pleading, he was legally presumed to be the natural father. The child was born during the marriage....When a child is born in wedlock the law presumes legitimacy and the presumption could be rebutted only by ‘strong, distinct, satisfactory and conclusive’ evidence”.