Virginia Family Law Appeals

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).

Circumstances mean that initialed note about wish to disinherit didn't count as change to will

The deceased's will identified his child and included him in the inheritance, but (a) the property settlement agreement in his divorce said the child was not his, and (b) on a tab divider in a binder of estate planning documents, which held a copy of the will but not the original, he wrote diagonally across the page, in cursive,

"11/17/03. I wish to remove Patrick named as my son entirely from this will no benefits. D.I." [The deceased's initials.]

The cardboard divider where he wrote this was next to a sheet of "Reminders" that said not to make changes on the face of his will without contacting his attorney.

There was abundant evidence that D.I. always used his full signature to approve any official document. Also, he left a note that told his executor where to find his will, but did not mention the binder, which included only a copy of the will. 

Overall, the trial court concluded that D.I. did not intend his initialed note to be an actual, official "codicil" amending his will. His brother did not establish by clear and convincing evidence that D.I. intended the document or writing to constitute an addition to, or alteration of, the will, as required by Va. Code Sec. 64.1-404(A).

Irving v. DeVito, Va. S.Ct. 12/14/17

6 months without contact waives adoption consent rights; child's best interests irrelevant; consent statute applies to all kinds of adoption.

In a stepparent adoption case where the other natural parent has not contacted the child for six months without just cause, that parent's consent is not needed, and so, nor is a determination of whether consent is withheld contrary to the child's best interest, the Virginia Court of Appeals says in Graves v. Jones (unpublished, 5/9/17). It was wrong for the trial judge to ask whether an ongoing relationship with the father would be detrimental to the child, it adds.

Code § 63.2-1205 dispenses with consent after six months of unjustified lack of contact. The trial court had held that that this section, which is near the beginning of the Code's adoption chapter,  did not apply in a stepparent adoption, which is authorized and governed by Code § 63.2-1241. It does apply, covering  adoption generally, the Court of Appeals says.

For another reason, as well, the social services department did not have to investigate the factors that Code § 63.2-1205 lists for determining the "best interests of the child" and whether the father's withholding of consent was contrary to best interests, the Court said. Because the order referring the case to the DSS for an investigation did not specify that they should do so.

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. 

Child name change must benefit child, not parent: Va. Supreme Court

Virginia's Supreme Court upheld the denial of a father's petition to change his out-of-wedlock's child's last name to his own. The child had the mother's maiden name and the mother had married, so that the child's last name was not shared with either parent. The father claimed that this made the standard from Spero v. Heath, 267 Va. 477 (2004) not applicable. However, the Court found that the father complained only of minor inconveniences to himself, not actual detriment to the child, from the child's existing name, and "the controlling standard remains the same - - that the petitioning party must prove by satisfactory evidence that the change is in the child's best interests." McMahon v. Wirick (9/12/14).   

SEPARATION AGREEMENTS – PARENTAL RIGHTS TERMINATION. - Va.Ct.App.

Could a circuit court terminate a mother’s parental rights by incorporating a separation agreement in which she had agreed to that? Of course not. The Court of Appeals, which is perhaps more analytical than you or me, explains it two ways, really, and then ties them up together neatly. First, the trial court had no jurisdiction to do that. When parental rights are terminated, it happens only one way, which is under the applicable statute, §16.1-283, and its procedural and substantive requirements have to be met. None of that was done, so that jurisdiction was not present. Also, an agreement to that is void as against public policy, and unenforceable, so the agreement couldn’t provide a jurisdictional foundation for anything. The mother had sued for visitation, but get this: because her parental rights had been terminated, she didn’t have any legitimate interest in visitation, and thus had no standing, according to the trial court. But the circuit court couldn’t rely on the unlawful termination to make that no-legitimate-interest finding. The Court of Appeals reversed and remanded with directions in this case, Layne v. Layne, 61 Va. App. 32, 733 SE2d 139 (10/23/12), inter alia, to reinstate her visitation claim.

Unmarried "illegitimate" fathers' rights protected - Va.S.Ct.

LEGITIMACY & PATERNITY – FATHERS’ RIGHTS – RULING ON ILLEGITIMATE FATHER’S RIGHT TO ESTABLISH PATERNITY AND PARENTHOOD UPHELD. The Court of Appeals holding in Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482 (2011), was affirmed by the Virginia Supreme Court in an opinion by Justice Mims on January 10 as L.F. v. Breit, 285 Va. 163, 736 S.E.2d 711 (2013). The Supreme Court agreed with the Court of Appeals that  the Assisted Conception Statute must not   be read to exclude from legal fatherhood an illegitimate father simply because he and the mother did not marry. Though the statute intends to prohibit “sperm donors” from suing to establish parental rights, it cannot properly or constitutionally be interpreted to exclude those who undertake with a willing lady friend a joint project  to become  unmarried parents in the same household. Moreover, that statute cannot be applied to exclude a father in a case like this, who enters into a binding voluntary contract as to custody and care of the planned child.

Uncle's girlfriend's parents aren't "relatives" in child placement - Va. Ct. App.

PARENTAL RIGHTS TERMINATION – RELATIVES PLACEMENT ACTION — DEFINITION OF RELATIVE.  It’s true that the Virginia statutes require that in termination cases once a child is adjudicated “dependent” the court must consider granting custody to the child’s relatives rather than foster care or adoption.  However, the definition of “relative” for these purposes does not include the mother’s brother’s girl friend’s parents.  And yes, §16.1-283(A) does require consideration of all “reasonable adoptions for placement with immediate relatives” as a requirement of termination, but remote connections are not relatives of the child “as a matter of law.”  The statutes used words that have an established common law meaning, and a court can presume that the Legislature intended that established meaning unless the statute clearly suggests otherwise.  Under common law a “relative” means somebody related by blood or marriage.  It has not been expanded statutorily to add adoptive relationships, but what was proposed here was honoring an even more tenuous connection.  Bagley v. City of Richmond DSS, ___ Va. App. ___, ___S.E.2d ___, 38 FLR 1178 (1/31/12).