Virginia Family Law Appeals

Counselor's power over family is an infringement on parents' Fourteenth Amendment rights.

The father appealed, arguing that the trial court erred in delegating to the child's counselor "unlimited, unfettered discretion over any and all parenting decisions to which both parents have to adhere or be subject to the contempt power of the court." The Court of Appeals agreed, making a profound statement about the father's constitutional rights. In sum, the overly broad clause infringes upon the Due Process Clause of the Fourteenth Amendment. The court held that the trial court erred in ordering the parties to fully cooperate with the child's counselors's recommendations. 

Bonhotel v. Watts, 2016 Va. App. LEXIS 327 unpublished, 12/1/16

Adoption reversed because adoptive parent caused the mother's lack of relationship and contact with child

The Court of Appeals reversed a trial court that mis-applied the best-interests-of-the-child standard in approving an adoption by finding that the mother withheld consent to it contrary to the child's best interests. It said the trial court put too much emphasis on the mother's long time without contact, and lack of a relationship with, the child, and not enough emphasis on how that separation from the child was lengthened and worsened by the adoptive parent's deliberately interfering with and preventing contact, and lengthy litigation.

Gregory v. Martin, Record No. 0816-15-3 (July 19, 2018, unpublished)

The mother had a long history of drug abuse was incarcerated for grand larceny, breaking and entering, and larceny with intent to steal when the child turned one. The father also had a problem with drug abuse, therefore the child stayed with the paternal grandfather and the child's father's sister, who filed a petition for adoption. The child's father gave consent, but the mother did not. Upon the mother's release, she filed a motion to amend visitation, but the court denied her motion because it was not in the best interests of the child, and found that the mother unreasonably withheld her consent for the aunt to adopt her child. There was a court appointed GAL on the case, and the GAL stated that the mother never really had a relationship with the child. The court found that the child was in a good place and should stay with the aunt, and that the mother refused the child's best interest by withholding her consent for adoption.

Voluntary paternity acknowledgement voided as "mistake of fact" even if he knew he might not be the father

A voluntary paternity acknowledgement that was later disproven by a DNA test can be voided as based on “a material mistake of fact,” even if the father had known all along that he might not be the father, Virginia’s Court of Appeals ruled in Matzuk v. Price (6/11/19). When the child was born, the mother and two men all knew that either man might be the father. Matzuk signed an acknowledgement and was treated as the father of the child. Five years later, the mother sued to have both men tested for paternity, and then to disestablish Matzuk’s paternity, as the test showed that the other man was the father. Under Virginia Code § 20-49.10, a court may set aside “any legal determination of paternity” if a DNA test shows that the legal father cannot actually be the father, except:

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

Virginia Code § 20-49.1(B)(2) says an acknowledgement of paternity:

shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact.

Matzuk, opposing the petition to disestablish paternity, said that when he signed the acknowledgement he “knew in my heart” that he was not the father, but admitted that actually, the facts he had known at the time indicated that he might or might not have been. The Court of Appeals emphasizes that there is all the difference in the world between knowing that you might not be the father, and knowing that you are not. And, interpreting the two statutes to be consistent instead of inconsistent, that makes Matzuk’s Acknowledgement “a material mistake of fact.”

The Court also emphasizes that not disestablishing the non-natural father’s paternity would violate the natural father’s right to a legal relationship.

 

DNA-disproven longtime legal/social father can't get any rights as parent, but can seek third-party visitation

A court erred in giving the former legal father joint legal custody and visitation once DNA testing showed that another man was the father, Virginia’s Court of Appeals ruled in Bedell v. Price (6/11/19). The former legal father had helped raised the child and acted as his father for five years, first living with the mother and later having 50-50 time-sharing. Until the DNA test, there was no reason to be sure that he was or was not the father. The award of joint custody and visitation was based on the trial court’s finding that the “legal father” was “a parent”, and that was improper because it was based on the disproven fact that he was the natural father. The appeals court remanded to the trial court, indicating that it might nonetheless award “third party visitation” if it could satisfy the more stringent tests required by the natural parents’ “constitutionally protected liberty interests in parenting their child.”

Constitution doesn't require expanding parenthood & marriage until they lose all meaning

The Court of Appeals refuses to retroactively change the law to make all artificially-conceived children of gay couples legally be the children of both partners, saying that doing so would effectively destroy the exclusively parental rights which the appellant is seeking equal access to, and the distinctive value and meaning of marriage which the U.S. Supreme Court gave equal access to in Obergefell v. Hodges.

In Hawkins v. Grese, a cohabiting lesbian couple decided to have a child together, and one of them was artificially inseminated and gave birth. They did not do an adoption to formalize the other's legal status as a parent, and they never married. They raised the child together until their relationship ended in 2014. They informally shared custody for another two years, then the biological mother cut off the child's  contact with the other, who then filed for custody and visitation. The juvenile court awarded joint physical custody, finding that removing one parent from the child's life was harmful to the child and caused behavioral problems.

On a de novo appeal, the Circuit Court found that while everyone involved agreed that Hawkins had standing to contest custody -- as a "person with a legitimate interest" if not as a parent -- she did not overcome the presumption favoring parents over non-parents, though it expressed "grave concern that separation from Hawkins "would cause [the child] continued harm." It did grant her visitation. Hawkins appealed to the Court of Appeals, claiming that it was unconstitutional to consider her a non-parent, and that “non-biological parents in planned families comprising same-sex couples and their children are in fact parents.” 

As for current Virginia law, looking at various "areas within the Code of Virginia where parent is used, it is clear that the term 'parent' contemplates a relationship to a child based upon either the contribution of genetic material through biological insemination or by means of legal adoption. For example, the Code provides that parentage may be established by 'scientifically reliable genetic tests,' '[a] voluntary written statement of the father and mother made under oath acknowledging paternity,' or 'proof of lawful adoption.'” And the very statute that gives standing to people who are not parents, but have acted like parents in some ways, Code § 20-124.1, thus makes clear that they are not considered parents. So

Where custody disputes are concerned, the term “parent” is a relationship to a child only through either biological procreation or legal adoption. This ... is also consistent with the Commonwealth’s refusal to adopt wider parental definitions through other legal constructions such as the de facto or psychological parent doctrines ...

But is this constitutional, as applied to this family? The standard of review is rational-basis, either for a violation of parental rights or for sexual orientation discrimination, the Court of Appeals says.

First, the definition of parent does not discriminate between same-sex and opposite-sex couples. It could apply to a heterosexual couple who used artificial insemination and did not marry. 

The relevant characteristics which classify here are entirely rational—people are considered parents on either biological or adoptive grounds, parties without these qualities retain a fair legal method to intervene if a parent - 10 - is unfit. Further, “[a] classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’” ...

In Obergefell, the Supreme Court held only that same-sex marriage was a constitutionally protected right. ... , the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre-Obergefell, different-sex marriages did not automatically result in the spouses becoming legal parents of each other’s children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation. 

Hawkins suggests that the “special facts and circumstances,” of this case provide an avenue for carving out an exception in this admittedly exceptional case. However, were we to do so, it is clear to us that the constitutional presumption of parental fitness would begin the process of suffering a death by a thousand cuts.

We certainly acknowledge that society has evolved new family structures while simultaneously concluding that qualitatively and quantitatively assessing which among a kaleidoscope of those structures should be given legal recognition is more properly the province of the people’s representatives in the General Assembly rather than the courts and Obergefell does not require a different conclusion.5 Were we to adopt the “know it when we see it,” “special circumstances” definition of parentage urged on us by Hawkins, it would open a Pandora’s box of unintended consequences to hold that a legal parent-child relationship is created simply by virtue of such factors as the amount of time a child spends with, or the strength of an emotional bond that exists between, another living in the same household. It is not hard to imagine profound consequences for society and the courts if a parent knows that an ex-wife, ex-husband, ex-boyfriend, ex-girlfriend, former nanny, au pair or indeed virtually anyone not related to their child through biology or legal adoption, can be placed on equal footing as a biological or adoptive parent solely through a significant emotional bond with the child. 

Much of the Obergefell language Hawkins cites is aspirational, seeking normality for same-sex families. It would be ironic for us to hold that the very decision expressing these aspirations became a tool for the erosion of the object of its aspiration—a family structure based upon marriage. The logical fallacy of this approach is apparent as well, if restricting marriage to opposite sex couples was unconstitutional because it denied same-sex couples the “constellation of benefits” heterosexual couples received, it could not possibly also then require the redefinition of every star in that constellation.

Also, Hawkins is implicitly asking the court to treat her as if she had been married to the mother. But although this couple was not allowed to marry under Virginia law at the time, there was no evidence that that was the only reason they did not marry, i.e., that they otherwise would have married. "How retroactivity applies to the 'constellation of rights' discovered in Obergefell is a question which has not yet been answered, nevertheless, this principle of retroactivity does not license this Court to engage in forensic retrospective marriage construction." 

Hawkins also claimed it was unconstitutional to deprive the child of the right to be raised and nurtured by both parents. However, generally only a parent has standing to defend a child's constitutional rights, and exceptions that give third parties such standing, to pursue a child's constitutional rights against the parents' will, are granted very rarely and reluctantly, usually when a child is being denied medical care, the Court notes. And sometimes, no one, including parents, is allowed to assert constitutional claims on a child's behalf.

The Court also upholds the finding that the presumption in favor of parents was not overcome. "This presumption favoring the parent is a strong one, and can only be rebutted by establishing certain factors by clear and convincing evidence, including “(1) parental unfitness . . . ; (2) a previous order of divestiture, . . . ; (3) voluntary relinquishment, . . . ; and (4) abandonment, . . . [and (5)] . . . a finding of ‘special facts and circumstances . . . constituting an extraordinary reason for taking a child from - 18 - its parent, or parents.’” Bailes v. Sours (1986). The harm to the child from having only visitation with Hawkins, instead of 50-50 or sole custody, does not compare with the harm in Bailes, where the natural mother was a virtual stranger to the child. And even if "psychological evidence shows that harm will necessarily flow from the severance of the relationship between herself and B.G.," "such severance is not a necessary outcome". 

Hawkins v. Grese, Va. Ct. App. 2/13/18, citing the factually similar case of Stadter v. Siperko, 52 Va. App. 81, 661 S.E.2d 494 (2008).

Custody bid not focused on kids' needs loses, even by mom against non-bio dad.

Virginia's Court of Appeals in Smith v. Smith (unpublished, 10/27/2015)  upheld a decision refusing to transfer primary custody to the mother, from a father who turned out not to be the biological father of two of the three children in a paternity test the mother requested. The children had been in the father's custody for several years, he was on their birth certificates and was the only father they had ever known, and those facts were enough to rebut the presumption in favor of natural parents. 

The mother's evidence was not about how the children's "needs were not being met and how she could meet them," it was about her disapproval of the father's girlfriend, which led her to file for custody modification. So she failed to prove that a change was in the children's best interests. A guardian ad litem reported that the children were stable with no changes in their circumstances. 

Liberty University's insurer needn't defend it in civil suit for anti-gay child abduction & advocacy - US Appeals Court

The federal Fourth Circuit court of appeals has reversed a trial court ruling that had said the University's insurance company should have defended it against a civil suit for the role its employee played in the international child abduction in the Miller-Jenkins case between Vermont and Virginia. A Vermont lesbian couple broke up and the partner who was the child's natural mother took her to Virginia and claimed that since Virginia would not recognize the couple's Civil Union under its Defense of Marriage Act, it should not recognize the other woman's parenthood and should not enforce a role for her in the child's life. This argument failed, going all the way to the Virginia Supreme Court, and a network of Christians who conscientiously objected to the state having the power to make a non-parent a parent (at least in a gay relationship) helped the mother flee to Nicaragua with the child.

The insurer was not required to defend the suit because the insurance policies have exclusions for:

• any harm that was “expected or intended from the standpoint of the insured”
• injuries “arising out of a criminal act committed by or at the direction of the insured.” 
• any “‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’” 

The Court continues:

"Critically, unlike the underlying complaints considered in the cases cited by the district court, the Jenkins Complaint does not allege that Appellee was responsible for its agents’ intentional acts because it was negligent. Rather, the Jenkins Complaint alleges that Appellee is directly liable for harm arising from its intentional participation in conspiracies and vicariously liable for the intentional acts of its agents."

Something that should be very disturbing to any family-law attorneys, law professors, to anyone who has advocated civil disobedience of what they believe to be unconstitutional laws and directives, and to any lawyers who defend people in controversial cases that pit various kinds of human right against each other, is this:

The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents’ racketeering, and for its agents’ participation in a conspiracy to violate Jenkins’s and the child’s “rights to a parent-child relationship.”

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school’s professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. 

...

The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of 7 action for a person in . . . Miller’s situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights . . . of same-sex families.” 

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s’] tortious, racketeering activity.” 

So, in several respects, the underlying lawsuit was a blatantly unconstitutional, Un-American "SLAPP" suit -- a "Strategic Lawsuit Against Public Participation." But it is hard to distinctly say that it actually stands on its own as such a suit, because it also includes what sound like very legitimate claims that should have been redressed: the same people named in the lawsuit for their academic work, and legal and political advocacy, were also alleged to have done very concrete things, which they should have known were illegal, to help the mother sneak the child out of the country to prevent the other mother from visiting with her. Even though they honestly believe that the other mother is not a real mother, had no rights, and that the government violates parents' rights, and gains dangerous and unprecedented power, when it decrees that a non-parent is a parent and that the biological father is not a parent (except in cases where it is required by the child's needs because of child abuse or neglect). 

The suit against the University was dismissed, but the immediate effect of this ruling is that the insurance company will not have to reimburse the University for its legal fees and costs in that suit.

LIBERTY UNIVERSITY, INC., v. CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER AMERICAN INSURANCE COMPANY; HANOVER INSURANCE COMPANY, published, U.S. Fourth Circuit, Case No. 14-2254 (July 10, 2015).

More background on the case:

The real story behind Miller-Jenkins

 

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com

 

Fathers' group explains its support for gay parents' custody rights

Mom loses visitation while adoption pending; appeals court explains why in Murray v. Sensabaugh,

The recent case of Murray v. Sensabaugh denies a "biological" mother any presumption in favor of her versus a prospective adoptive couple, because she had "abandoned" the child and "voluntarily relinquished custody" to the couple. Thus it evaluated whether her visitation should continue without any presumption, but solely based on the child's best interest, and found "clear and convincing" evidence in favor of terminating the mother's visitation The opintion lists some facts that justified this: 

• Before the couple sought custody, she and another person regularly brought the child to them dirty, unwell, injured and/or hungry; asked the couple for money; and often drove the child wihtout a valid driver's license.
• The couple claimed she posed "scantily clad" and holding weapons for "vulgar photos" used on "a commercial web site."
• She posted online that her job was "selling sex toys".
• The child called her by her name, not "mom".
• When court-ordered to take a parenting class and get a driver's license, she took a year to take the class and longer to get the license.

The mother also appealed the denial of her "motion to strike" the adoption petition, and the court refused to hear the appeal because what the mother chose to appeal was not a final order;  the adoption itself was still pending at the time of the denial of the motion to strike, and the judge had referred the case to the DSS for home studies and a report.

Va. rejects "Existing Indian Family" doctrine & other attacks on Indian Child Welfare Act

INDIAN CHILD WELFARE ACT – TRANSFER TO TRIBAL COURTS – NEW LEGAL STANDARD. Giving an enormous boost to the adoption industry, the U.S. Supreme Court this summer drastically whacked away at the scope of the Indian Child Welfare Act, 25 USC §§ 1901 - - 1963, moving justices Scalia and Sotomayor to pen some of the most eloquent and outraged dissents heard in a long time. But much as that opinion demonstrated how much the majority love the adoption industry and all of its marketing publicity, the peculiar posture of the case dictated a result that left plenty of flexibility for the state courts in their continuing discretionary application of this Act. Now it seems the Virginia Court of Appeals has had some time to read and ponder the strong anti-tribal sentiments so forcefully expressed by the U.S. Supreme Court majority, but passes up at least one opportunity to jump on the bandwagon. Here, a Fairfax trial court decision gave the appellate court its chance to decide whether to embrace or reject the so-called “Existing Indian Family Exception” to the requirements of the ICWA. That is, the proposition that the Act applies only when the child is being removed from “an existing Indian family.” The argument raised by the foster parents and the Guardian ad Litem was that because one of the parents of the child in question was a non-Indian, the exception applied, the Act did not apply, and thus the case should stay in the Fairfax Circuit Court. (Note: this is slightly different from the “intact Indian family” exception that the U.S. Supreme Court came up with this summer in the Baby Girl case, which was that if one parent is a mere visitation parent, the Act doesn’t apply.) However, the Court of Appeals says, “we decline to recognize the Existing Indian Family Exception, and join the growing chorus of courts that have rejected the Exception.” The appellate court’s reasons are very clearly and very patiently explained, but like so many of the decisions in this 29-page opinion, can’t be detailed here. Basically, the exception is entirely court-created, Congress didn’t put it in the statute, the voluminous case law rejecting the theory is indeed a chorus, and “we decline to rewrite ICWA…” Next, the statute allows state courts to deny transfer if “good cause” is shown. The foster parents and GAL argued that “good cause” is synonymous with “best interests”. The Court of Appeals disagreed, saying it takes “a substantial risk of causing immediate, serious emotional or physical damage to the child, from the transferred decision itself, and adding that it has to be shown by clear and convincing evidence. Moreover, best interest is not pertinent to jurisdictional decisions. Nor, the Court of Appeals says, is there a rule that both parents have to be Indians for the Act to apply: Congress didn’t put any such thing in the act, and it’s clear that they didn’t intend to. Same with GAL/foster parents’argument that the case had to stay in Fairfax because that is the only court that has jurisdiction over both parents: the Act doesn’t say that, and besides, the Vietnamese father has consented to tribal jurisdiction. The Court of Appeals ruling promulgating the “immediate, serious damage” standard required a reversal and remand of the trial court decision, since the circuit court had articulated a slightly different one. Thompson v. Fairfax County DFS, _______ Va. App.________,_______SE 2d______ (9/10/13), Record No. 2185-2-4, was four consolidated appeals. It also necessitated the unpublished remand in Nunnally v. Dinwiddie DSS.

 INDIAN CHILD WELFARE ACT – APPEALABILITY OF JURISDICTIONAL DECISION – FINAL ORDER VEL NON. The unpublished Citizen Potawatomi Nation v. Dinwiddie DSS, however, presented another legal question which was not governed by the Thompson case. And it is a disturbing, infuriating and illogical ruling to those who use the ICWA or the Hague Abduction Convention, where the idea that a ruling on jurisdiction is in practical terms anything but final is nothing but laughable, and for 99.9% of litigants, justice by appeal is an impossibly moot abstraction. Of course it should not have been disturbing to anyone familiar with UCCJEA litigation, since the same court some time ago decided that the result in a UCCJEA decision on jurisdiction is non-final and can’t be appealed. And so it is with a decision under the ICWA denying a transfer to the courts of an Indian tribe. Record Nos. 1713-12-2, 1724-12-2, 1725-12-2, 1726-12-2.

 

Unwed father in In Vitro Fertilization isn't mere "sperm donor" - Va. Ct. App.

PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE.  An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11).  Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not. 

It all began like a typical idyllic story of 21^st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends.  The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary.  Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts.  Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.”  She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully.  They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go.  Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.” 

On July 13^th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate.  They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward.  It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter.  When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....”  The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.”  He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him.  The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest. 

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd.  Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo.  It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10.  Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found.  The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here.  She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights.  Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself.  The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2).  Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit.  That, it said, would be a manifest absurdity.  The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals.  These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception.