Children - § 3-3 (B) - § 3-6 - Part 2

    § 3-4.   Paternity

    (A)  Generally

2019 --- Bedell v. Price, Va. Ct. Appeals, No. 1687-18-2
The circuit court erred in concluding that two men, Matzuk and Bedell, as well as Mother, were all parents of the child for purposes of determining custody and visitation. A parent-child relationship is created upon either the contribution of genetic material through biological insemination or by means of legal adoption. Virginia law, in the context of this case, makes no provision for dual fatherhood. Although Matzuk had previously signed an acknowledgment of paternity upon the child’s birth, the trial court in a separate proceeding established Bedell’s paternity in the child and disestablished Matzuk’s paternity pursuant to Code of Virginia § 20-49.1(B)(2). Under this evidence, the circuit court was required to reject Matzuk’s claim that he was a parent of the child.

2019 --- Matzuk v. Price, Va. Ct. Appeals, No. 1635-18-2
The circuit court did not err in granting Mother’s petitions to disestablish Matzuk’s paternity of the child and to establish another man’s paternity of the child. Code of Virginia § 20-49.1(B)(2) provides, in pertinent part, that a parent-child relationship between a child and a man may be established by a written voluntary statement of the father and mother made under oath and confirming paternity. The statute further provides that such acknowledgement of paternity “shall have the same legal effect as a judgment . . . and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from . . . a material mistake of fact.” “Material” is defined as “[o]f such a nature that knowledge of the item would affect a person’s decision-making process” and “mistake” is defined as “[a]n error, misconception, or misunderstanding; an erroneous belief.” (Quoting Black’s Law Dictionary.)

Here, shortly after the child’s birth, Matzuk affirmed in an acknowledgment of paternity that he was the natural parent of the child. However, during the proceeding on Mother’s petitions, the parties learned definitively through genetic testing that Matzuk was not the child’s biological father. Additionally, Matzuk admitted at trial that he was not certain at the time he signed the acknowledgment that he was in fact the child’s biological parent. It is obvious that Matzuk’s acknowledgment of paternity, when he was not in fact the child’s biological father, was “material” in that the knowledge of the actual biological father was an issue that “would affect a person’s decision-making process.” Further, Matzuk’s acknowledgement of paternity clearly resulted from an error, misconception, or misunderstanding. Although Matzuk’s argues that no mistake of fact occurred because the parties were aware that he might not have been the father, a plain reading of Code § 20-49.1(B)(2) makes clear that there is no requirement that a party have no knowledge that a fact might be untrue to create a mistake of fact. Rather, the party must act in part upon an error, misconception, or misunderstanding.

2012---Wooddell v. Lagerquist, Va. Ct. of Appeals, Unpublished, No. 2121-11-3
The trial court erred in finding that the appellant was not a parent to a child, where both the appellant and the mother voluntarily signed an acknowledgement of paternity at the time of the child’s birth, neither party sought to rescind that acknowledgement within 60 days, and neither party presented evidence that the acknowledgement resulted from fraud, duress, or material mistake of fact. The Court of Appeals reconciled two seemingly conflicting statutes – Va. Code §20-49.1(B)(2) and Va. Code §20-49.10, holding that when a voluntary acknowledgment has been entered, and neither party has sought to rescind the acknowledgment within 60 days, the acknowledgement is binding and conclusive of paternity unless a party later challenging the acknowledgment proves that the acknowledgment resulted from fraud, duress, or material mistake of fact. While reliable genetic testing may assist in establishing fraud, duress, or material mistake of fact, it is not by itself dispositive of that issue nor sufficient alone to establish legal paternity when such an acknowledgement of paternity exists.

1995--- Myers v. Brolin, Va. Ct. of Appeals, Unpublished, No. 1737-94-4
Trial court erred in denying mother’s request that father be ordered to verify his true identity and his employment where father’s true name was called into question during the paternity proceeding. Va. Code §20-49.8 gives the court authority to include in an order establishing parentage any provision directed against the appropriate party to the proceeding, concerning the duty of support or any other matter in the best interest of the child. To determine who is an “appropriate party” for purposes of paternity and support, the child or mother on the child’s behalf is entitled to require that the father verify his identity when a substantial question arises concerning his identity. Because a duty of support necessarily flowed from the paternity decision, father’s employer was a relevant fact that the court had the discretion to order that father reveal.

1995--- McFadden v. McFadden, Va. Ct. of Appeals, Unpublished, No. 2086-94-2
Although blood test results indicated that husband was not the father of one of the children of the parties, husband failed to make a prima facie case of fraud by wife with regard to the paternity of the child. Wife testified that she was shocked to learn the results of the test, and testified that though she never disclosed to husband or anyone else that she was raped during the marriage, she nonetheless had no reason to believe that husband had not fathered the child. Based on the evidence presented, the trial court did not err in finding that husband failed to establish that wife had intentionally and knowingly made a false representation of a material fact with the intent to mislead husband.

1990---Slagle v. Slagle, 11 Va. App. 341
Where a divorce decree stated that child was born of the marriage Father was collaterally estopped from contesting paternity years later, despite subsequent blood test having revealed that he was not the biological father.

1989---NPA v. WPA, 8 Va. App. 246
When a child is born during the marriage, the law presumes legitimacy and the presumption can be rebutted only by strong, distinct, satisfactory, and conclusive evidence. Virginia Code §20-49.4 specifies various factors which can be considered in determining paternity. The HLA test results, which established conclusively that the husband was not the biological father, and wife’s admission that she had sexual intercourse with another man during a period of separation, were sufficient to rebut the presumption of legitimacy.

    (B)  Assisted Conception

2014---Bruce v. Boardwine, 64 Va. App. 623
The purpose of the assisted conception statute (Code of Virginia § 20-156 et sec.) is to protect the interests of married parents by ensuring that they can obtain sperm from an outside donor without fear that the donor will claim parental rights.
Although Mother successfully inseminated herself with Father’s sperm using an ordinary turkey baster, the trial court did not err by determining that Virginia’s assisted conception statute did not apply to Father. Code of Virginia § 20-156 defines a “donor” as an “individual, other than a surrogate, who contributes the sperm or egg used in assisted conception.” The statute defines “assisted conception” as “a pregnancy resulting from any intervening medical technology [including] noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization . . . and low tubal ovum transfer.” The statute does not encompass all technology. Instead, its language is limited to “medical technology.” The term “medical technology” as used in Code § 20-156 does not encompass an ordinary kitchen implement such as a turkey baster. Furthermore, a turkey baster used at home is simply not analogous to the medical technologies listed in the statute.

2013---L.F. v. Breit, 285 Va. 163
Va. Code §20-158(A)(3) does not run afoul of equal protection principles. Virginia has a legitimate governmental interest in promoting the marriage of its citizens, andthe goal of Va. Code §20-158(A)(3) to prevent future interference by sperm donors is rationally related to that interest.

2013---L.F. v. Breit, 285 Va. 163
Va. Code §20-157 and §20-158(A)(3) cannot be read to permanently prevent, in all cases, an unmarried donor of assisted conception from establishing parentage. The statutes must be harmonized with Va. Code §20-49.1. If not so harmonized, Va. Code §20-157 §20-158(A)(3) would foreclose any action by a donor to establish parentage, which in cases (as here) where the donor has demonstrated a full commitment to the responsibilities of parenthood, would operate to deprive the donor of the due process protection of his constitutionally protected right to make decisions concerning the care, custody and control of his/her natural child. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause of the U.S. Constitution. Simply, put, there is no compelling reason why a responsible, involved, unmarried, biological parent should never be allowed to establish a legal parentage of his or her child born as a result of assisted conception.

While the assisted conception statutes prohibit a sperm donor from establishing parentage solely on the basis of genetic testing/biological ties, parentage may nonetheless be established by an acknowledgment of paternity. Va. Code §20-164 mandates that parentage of a child of assisted conception shall be determined only as set forth in the remaining assisted conception statutes, “and when applicable, [§§20-49.1, et. seq.].” Because it cross references Va. Code §20-49.1, Va. Code §20-164, and all assisted conception statutes, must be read in conjunction with, not isolated from Va. Code §20-49.1. When the statutes are read in conjunction, Va. Code §20-49.1(B)(1), which allows paternity to be established solely on the basis of genetic testing, directly conflicts with Va. Code §20-158(A)(3), which prohibits a mere sperm donor from establishing paternity. Thus, genetic testing or biological relationship alone are insufficient to establish paternity in assisted conception cases. However, Code §20-49.1(B)(2), which provides that paternity can be established by an acknowledgment of paternity, does not conflict with §20-158(A)(3). Executing an acknowledgement of paternity involves an assumption of rights and responsibilities well beyond biological ties. It is a voluntary agreement to establish an actual parent-child relationship that more closely approximates the status of a gestational mother’s husband rather than a mere sperm donor. The General Assembly did not intend to divest individuals of the ability to establish parentage solely due to marital status, where, as in this case, the biological mother and sperm donor were known to each other, lived together as a couple, jointly assumed rights and responsibilities of parenthood, and voluntarily executed a statutorily prescribed acknowledgment of paternity.

2011---Breit v. Mason, 59 Va. App. 322
Trial court erred in sustaining mother’s and guardian ad litem’s plea in bar to biological father’s action to establish paternity. Mother and biological father were not married, but cohabitated in a relationship for a number of years, attempted to conceive a child together through sexual intercourse, and when they failed to do so, used in vitro fertilization to unite biological father’s sperm with mother’s egg. When the child was born, both parties executed an acknowledgement of paternity, and biological father was listed on child’s birth certificate. For a year after the child’s birth, the parties continued to cohabit, and biological father formed a relationship with the child.

The mother attempted to argue that Va. Code §20-158(A)(3) bars any donor in an assisted conception situation from establishing parental rights unless the mother and donor were married at the time of conception. However, the Court of Appeals, in reading Va. Code §20-49.1(B)(2) together with Va. Code §20-158(A)(3), held that to impose a permanent bar to a known biological father’s petition to determine parentage – a biological father whose sperm was donated for in vitro fertilization at the request and with the consent of the birth mother who voluntarily signed a birth certificate application under oath acknowledging the biological father to be the legal father of the child – results in a manifest absurdity by preventing the intended biological father of the child from ever establishing parentage.

    § 3-5.   Guardianship

1994---In Re: Jessica Margaret O’Neil, 18 Va. App. 674
Circuit courts, not juvenile courts, have the authority to appoint a person or persons as guardian(s) of a child or the estate of a child, pursuant to Va. Code §31-4.

A guardian is one who legally has responsibility for the care and management of a person, or the estate, or both, of a child during his or her minority. Guardianship is a power broader than that of legal custody, as it is the power to both have custody of the child and to take possession of the child’s estate, real and personal, and out of the proceeds of such estate provide for the child’s maintenance and education. The guardian carries the burden of managing the child’s estate and making good the lawful debts of the child. “Legal custody,” on the other hand, is the right to have physical charge of the child and generally direct the day-to-day activities of the child’s life. The legal custodian is not a fiduciary or guarantor of the child in the same manner as a “guardian.”

Where the grandparents already had legal custody of the child, the trial court’s consideration of a petition to transfer guardianship from the natural mother to the grandparents, for purposes of allowing the child to be covered under the grandparents’ health insurance policy, was limited to a determination ofwhether the transfer was in the best interests of the child. Absent evidence that the grandparents were attempting to accomplish some fraud or abuse the power of guardianship, or that they would be incompetent to discharge the duties of legal guardians, coupled with the absence of objection from the child’s natural guardians, the best interests of the child would be served by ordering the transfer.

    § 3-6.   Tortious Interference

2012--- Wyatt v. McDermott, 283 Va. 685
On questions of law certified from the U.S. District Court for the Eastern District of Virginia, the Virginia Supreme Court recognizes the existence of a claim for “tortious interference with parental rights.” The elements necessary to be established to support the claim are as follows: (i) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (ii) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (iii) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (iv) damages resulted from such interference.

Damages recoverable include compensatory damages for expenses incurred in seeking recovery of the child, lost services, lost companionship, mental anguish, and in cases of intentional interference (as opposed to mere negligence), punitive damages. Equitable remedies such as injunctions or custody orders may not be awarded under this cause of action.

The burden of proof is preponderance of the evidence.

Affirmative defenses include, but are not limited to, (i) substantially equal rights (Court prescribed specific bar against use of this action between natural parents); (ii) justification, wherein a party should not be held liable if he/she possessed a reasonable, good faith belief that interference with the custodial relationship was necessary to protect the child from physical, mental, or emotional harm, or possessed a reasonable, good faith belief that the interference was proper, or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child (mistake of fact).