Children - § 3-3 (B) - § 3-6

(2) Appeal to Circuit Court

2015---Boatwright v. Wise County Department of Social Services, Va. Court of Appeals, No. 0789-14-3
The trial court did not err in denying Father’s motion to reverse and remand a termination of parental rights case to the juvenile court on the basis that the court did not hear Father’s appeal within 90 days. Because the term “shall” in Code § 16.1-296(D) is used in the context of directing a public official to take action, the statute is procedural, rather than mandatory, and will not prevent the circuit court from exercising its subject matter jurisdiction absent a showing of harm or prejudice. Here, Father could not demonstrate he was harmed or prejudiced by the court’s failure to hear his appeal within 90 days because he agreed to a continuance of the trial date that was seven months after he perfected his appeal.

1982 --- Walker, Sr. v. Dept. of Public Welfare, 223 Va. 557
As with the majority of final orders entered by a juvenile court, a final order terminating residual parental rights is heard de novo on appeal in the circuit court.

(3) Entrustment Agreements

2015---Boatwright v. Wise County Department of Social Services, Va. Court of Appeals, No. 0789-14-3
In terminating Father’s parental rights, the circuit court did not err by relying on Father’s stipulations, made as a condition of an entrustment agreement, that the evidence was sufficient to terminate his parental rights. Although Code of Virginia § 63.2-1223 provides that an entrustment agreement terminating parental rights shall be revocable by either birth parent, the Code does not indicate that stipulations made in connection with an entrustment agreement are revoked in the event that the entrustment agreement is revoked. To the contrary, once a party makes a stipulation, he cannot later make an objection to it.

(4) Foster Care Plan

2015---Boatwright v. Wise County Department of Social Services, Va. Court of Appeals, No. 0789-14-3
Code of Virginia § 16.1-283(A) provides that “no petition seeking termination for residual parental rights shall be accepted by the court prior to the filing of a foster care plan. . . .” Here, the Department of Social Services filed a foster care plan with the juvenile court, which subsequently entered orders approving the plan and terminating Father’s parental rights. During Father’s appeal to the circuit court, the Department explained the foster care plan to the circuit court, detailed Father’s failure to comply with the plan, and by agreement, proffered that the plan was entered by the juvenile court. In its final order terminating Father’s parental rights, the circuit court noted that a foster care plan had been filed and approved. Said procedure was consistent with Code § 16.1-283(A).

    (B)  Criminal Neglect

2007---Robinson v. Commonwealth, 274 Va. 45
In the prosecution of a Husband and Wife on multiple counts of contributing to the delinquency of a minor under Va. Code §18.2-371 arising from a party held at their home at which alcohol was served to their underage son and his guests, the trial court did not err in denying the defendants’ motions to suppress evidence obtained as a result of a warrantless search and seizure occurring within the curtilage of their home.  Exigent circumstances existed, including possible destruction of evidence and fleeing suspects, the investigating officer had probable cause to justify his entry into the curtilage, and he did not exceed the scope of implied consent to such entry.  The court rejected the adoption of a bright line rule that the scope of implied consent is limited to the most direct path to the front door of a dwelling to knock and talk with a resident.

2006---Jones v. Commonwealth of Virginia, 272 Va. 692
Evidence was sufficient to prove that defendant willfully failed to provide care for her child in a manner so gross, wanton, and culpable as to show a reckless disregard for his life, in violation of Va. Code §18.2-371.1(B)(1). Heroin and residue from cocaine were found in a room where the child was studying, and defendant admitted to selling 20 capsules of heroin a day.  The ongoing potential violence stemming from illegal drug sales continually put the child in harm’s way.

2006---Morris v. Commonwealth of Virginia, 272 Va. 732
Court reversed defendant’s conviction for two counts of felonious child neglect violation of Va. Code §18.2-371.1(B) where during the day defendant was in such a deep sleep that she couldn’t check on her children or know where her children were. There was no evidence that defendant was under the influence of drugs or alcohol at the time she and the children went to sleep. To be convicted of felonious child neglect in violation of Va. Code § 18.2-371.1(B), a person had to commit a “willful” act or omission in the care of a child, and, as a matter of law, defendant’s conduct was not a willful act or omission that was so gross, wanton, and culpable as to show a reckless disregard for the children’s lives.

2005---Barnes v. Commonwealth, 47 Va. App. 105
Trial court did not err in finding evidence sufficient to support a finding of criminal negligence under Va. Code §40.1-103(A) and defendant’s conviction for two counts of child endangerment was affirmed.  A rational fact-finder could find the defendant negligent in leaving her two and four year old children alone in an unlocked apartment for the period of time it would take to travel to a grocery store, buy ten bags of groceries and drive back.  Mother’s total inaccessibility rendered this case different from Ellis v. Commonwealth, 29 Va. App. 548 (1999).

    (C)  Name Change

2014---McMahon v. Wirick, 288 Va. 197
The trial court did not err in finding that Father failed to present any evidence that a name change was in the best interest of the child. Virginia Code § 8.01-217 requires a parent seeking to change a child’s surname over the objection of the other parent to prove that the name change is in the child’s best interest. The parent requesting a name change must demonstrate that substantial reasons exist for the change. Father’s evidence that his having a different surname from the child resulted in confusion with the child’s preschool and health insurance carrier, caused embarrassing situations at the child’s school such as Father being referred to by the incorrect surname, and caused the child to “ask questions” amounted only to mere inconveniences and embarrassment to the Father, not to substantial reasons for change. Further, ensuring that a child shares a surname with at least one parent is not by itself a substantial reason for changing a child’s name.

2004---Spero v. Heath, 267 Va. 477
The trial court erred in determining that a name change was in the best interest of the child where the child bore Mother’s surname and Father petitioned the court to change the child’s surname to that of the Father.  The petitioning parent bears the burden of proving that a change of name is in the child’s best interest, and Father in this case failed to meet the burden.  Mother’s conviction for DUI did not rise to the level of misconduct sufficient to embarrass the child and the record did not reflect that Mother failed to care for the child.

    (D)  Abuse and Neglect

      (1) Abuse/Neglect Proceedings

2012---Blevins v. Prince William Dep’t Soc. Services, 61 Va. App. 94
Although a dispositional order in an abuse/neglect proceeding is not a final order in the conventional sense of the term, i.e. one that disposes of the whole subject and leaves nothing to be done, such orders are nonetheless “final” for purposes of appeal, pursuant to Virginia Code §§ 16.1-296(D) and 16.1-296(A).

      (2) Evidence of Abuse/Neglect

2016 --- Carlos v. Virginia Beach Department of Human Services, Va. Ct. of Appeals, Unpublished, No. 1060-15-1
The trial court correctly found that Mother’s youngest child was at substantial risk of abuse and neglect. The child was removed from Mother’s custody two days after the child’s birth, and there were no allegations that Mother had physically abused the child before that time. However, less than two months before the child’s birth, Mother’s parental rights to her eleven oldest children had been terminated because of her physical abuse towards them. The record of that proceeding included the oldest child’s testimony regarding the physical abuse, which Mother continued to deny had ever occurred. The statutory definitions of abused or neglected children do not require proof of actual harm or impairment having occurred; instead, it contemplates a risk of future abuse. Given the totality of the circumstances, the court did not err in finding that Mother’s youngest child was at risk for abuse and neglect.

2015 --- Rhodes v. Harrisonburg Rockingham Social Services District, Va. Ct. of Appeals, Unpublished, No. 2221-14-3
The trial court did not err in finding that Father had abused or neglected the child where the evidence showed, among other things, that Father expressed anger toward Mother in front of the child, talked negatively about Mother in front of the child, told the child inaccurate or one-sided accounts of what was happening in the divorce proceeding, refused to cooperate with the child’s counselors and other mental health professionals, and that Father’s actions in total were alienating the child from Mother.

2013 ---Cumbo v. Dickenson County Department of Social Services, 62 Va. App. 124
An individual need not be convicted of a sexual offense with a child to be in violation of Va. Code §16.1-228(4). The plain language of the statute requires only that the individual commit a sexual act or allow a sexual act to be committed upon a child in violation of the law.

“A child” for purposes of Va. Code §16.1-228(4) includes any child and is not limited to children in the parent or guardian’s care.

2011---Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 0068-11-2
The trial court did not err in awarding primary physical custody to the father, despite mother’s corroborated evidence of several instances of verbal and physical abuse, and father’s own admissions as to having hit mother “four to five times.” Father testified that mother often hit him, and that he only hit her if she hit him first. Moreover, evidence revealed that mother had also engaged in physical abuse against father and the children, including an incident in which she threw a tea cup at father, causing an injury that required stitches. The trial court found that the totality of the evidence revealed a violent history of abuse by both parties, but gave greater weight to the testimony of the father as to the nature and cause of the abuse.

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
The trial court erred in finding that, because mother had not caused or inflicted actual injury upon the child, she could not be guilty of abuse. The statutory definitions of “abused” or “neglected” child set forth in Va. Code §63.2-100 do not require proof of actual harm or impairment. All that is required under the statute is the creation of an environment that threatens to inflict physical or mental injury to the child.

2010--- Olson v. Conlon, Va. Ct. of Appeals, Unpublished, No. 0470-10-4
Upon consideration of the factors of Va. Code §20-124.3, if the court finds a history of family abuse as that term is defined in Va. Code §16.1-228 or sexual abuse, the court may disregard the factors contained in Va. Code §20-124.3(6) concerning the propensity of one parent to support the child’s relationship with the other parent.

2010--- Flanagan v. Flanagan, Va. Ct. of Appeals, Unpublished, No. 0468-10-4
Despite the trial court’s statement that it was “not in a position to articulate what specific inappropriate conduct in the form of an act, or series of acts, might have occurred between the child and her father,” the trial court did not err in awarding sole physical and legal custody to mother with supervised visitation to father, based on the court’s finding that “it is more likely than not that this inappropriate act or series of acts occurred.” The trial court was not required to make specific findings of acts of sexual abuse in order to consider evidence related to sexual abuse when deciding the best interests of the child.

2010---Chabolla v. Dep't of Social Services, 55 Va. App. 531
The trial court did not err in affirming the finding of the Department of Social Services hearing officer that father's holding and displaying of a loaded firearm to his daughter as a means of expressing his frustration with her behavior constituted physical abuse. Father's conduct created a "substantial risk of death, disfigurement, or impairment of bodily functions" and therefore met the definition of physical abuse set forth in 22 VAC 40-705-30. Whether or not the father actually intended to harm his daughter with the firearm is irrelevant.

2008---Anonymous B v. Anonymous C, et al,  51 Va. App. 657
Trial court did not err in refusing to admit the written opinion of an administrative appeal hearing officer.  The court had already been made aware of the result contained in that written opinion, and was not required to admit the opinion itself or to consider any of the evidence or rationale for the decision contained therein.

Trial court erred in holding that it lacked the authority to alter the JDR court’s findings of fact as contained in an order adjudicating the issue of child abuse.  Despite the fact that the father appealed only the dispositional order of the JDR court rather than both the dispositional and adjudicatory orders, the trial court conducting the de novo appeal was required to accept evidence relevant to determining whether to enter a protective order and, if so, what the terms of the order should have been.  Because evidence of whether the father sexually abused the child was relevant to that determination, the trial court erred in excluding that evidence.

2007---Rice v. Virginia Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 0413-06-2
Court of Appeals found that substantial evidence did not exist to sustain Department of Social Services’s findings of sexual abuse of daughter.  The daughter stated during an interview that Father, a physician, had put his finger in her “heinie” and that it made her “heinie” red and scratchy.  However, the daughter’s medical records demonstrate that she had been treated over the same time period that the alleged abuse occurred for both a urinary tract infection and various body rashes.  The symptoms associated with those conditions – itching and redness – were the same symptoms that the child identified during her interview.  The evidence, specifically the medical records, was consistent with Father’s explanation and description of occasions when he medically examined or otherwise had contact with the child’s private area.

2007---Sylvia v. Hampton Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 1557-06-1
Trial court did not err in finding child was properly removed from Mother’s custody due to abuse and neglect.  Mother was not prepared to care for the child at home.  Because of her mental retardation and mental health issues, Mother did not understand how to feed an infant or the frequency of feedings.  Further, another child had been removed from mother’s custody due to abuse and neglect.

    (E)  Protective Orders

2015--- Grant v. Quigley, Va. Ct. of Appeals, Unpublished No. 0999-14-4
The circuit court did not err in extending the protective order entered by the juvenile court. Although Father was not personally served with the protective order entered by the juvenile court, he clearly had actual notice of it as evidenced by his reference to the order on his notice of appeal to the circuit court and his admission of the order’s existence at the circuit court’s de novo hearing on appeal.

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
Although a protective order petition was originally brought in mother’s name, the petition was brought on behalf of the child. Thus, the mother’s right to pursue the protective order could, in the event the mother attempted to non-suit, as she did here, be transferred to another party in interest or the guardian ad litem.

2008---Anonymous B v. Anonymous C, et al,  51 Va. App. 657
Trial court did not err in refusing father’s motion to dismiss a protective order based on an admission by the Department of Social Services (DSS), after an administrative finding that he sexually abused his daughter was reversed on administrative appeal, that DSS no longer had a factual basis on which to request continuation of the order.    Virginia Code § 16.1-253 permits parties other than DSS, as well as the court sua sponte, to initiate proceedings for and advocate entry of a protective order.  The trial court, by accepting mother’s motion to file a cross-claim, permitted mother to take on the role of advocating for a protective order in place of DSS.

    (F) In loco parentis (Parent-Child)

1989---NPA v. WPA, 8 Va. App. 246
The trial court did not err in refusing to hold husband liable for child support under the theory of in loco parentis. The theory of in loco parentis provides, in effect, that a stepparent or one who knowingly and voluntarily assumes the role of parent to a child may obtain certain legally cognizable rights and obligations the same as if between a parent and child but only so long as the relationship which gave rise to the rights and duties continues to exist. Husband was under the erroneous assumption that he was the child’s natural father; he did not knowingly and voluntarily accept another man’s child into his care.

    (G) Same-Sex Parental Rights

2017---Pavan v. Smith, U.S. Sp. Ct., R-69, docket 16-992 (June 26, 2017)
In this case, the state of Arkansas refused to issue a birth certificate to a married lesbian couple naming the female spouse of the birth mother as a parent of the child (who was conceived via anonymous sperm donation), a decision which was ultimately upheld by the Arkansas Supreme Court. The United States Supreme Court reversed and remanded the case based on its holding in Obergefel v. Hodges. In Obergefel the Court explained that the United States Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples,” and therefore provides same-sex couples “the constellation of benefits that the States have linked to marriage.” Here, Arkansas generally issues birth certificates to opposite-sex married couples naming a birth-mother’s male spouse as the father of the child regardless of his biological relationship to the child. In reversing the Arkansas Supreme Court’s decision, the Court opined that where a state issues birth certificates that afford married opposite-sex parents a form of legal recognition that is not available to unmarried parents, the state cannot deny married same-sex couples that same recognition.

    § 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).

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