Arthur Leonard – Lesbian and gay Lawnotes, December 2009
A three-judge panel of the Court of Appeals of Virginia ruled on November 24 that the Fairfax Juvenile and DomesticRelations District Court had properly accorded full faith and credit, as required by the U.S. Constitution, to a North Carolina judicial decision awarding primary legal and residential custody of a child to two gay men (who are registered California domestic partners). Prashad v. Copeland & Spivey, 2009 WL 4030852. Still pending before the Deomstic Relations Court is a demand by the woman who served as surrogate mother for the child that the North Carolina custody ruling be modified to give her sole custody. One of the judges on the Court of Appeals argued in dissent that the case was not properly before the court for review on the merits.
In September 2003, Roberto-Luis Copeland and Philip Spivey contracted in Minnesota with Tanya Prashad, a married woman, for her to be a surrogate mother of their child. Copeland and Spivey both donated sperm that was mixed together to inseminate Prashad, and their child, identified by the court as A.C.C., was born in Minnesota in August 2004. No DNA test was done to determinate who was the father, and Copeland was named on the birth certificate. A few days after A.C.C. was born, the two men moved with A.C.C. to North Carolina. Prashad visited the child in North Carolina with the consent of the fathers, but the relationship deteriorated and after February 2005 the fathers refused to allow further contact.
Prashad and her husband traveled to NorthCarolina in April 2005, intending to take A.C.C. away from the fathers and bring the child back to Minnesota. A confrontation ensued in which the fathers refused to let Prashad see the child, and the fathers left with the child for California, where Copeland and Spivey registered as domestic partners. After staying in California for a time, they returned to North Carolina with A.C.C.
While they were living in North Carolina, Prashad filed an action against Copeland in the North Carolina Justice Court in Gaston County, seeking an award of custody and an order compelling the men to submit to DNA testing to determine A.C.C.’s biological father. The court ordered the test, and Spivey was determined to be the biological father. Spivey then moved to intervene as a party in the custody proceeding. The North Carolina court determined that it had jurisdiction over the case because the two men and A.C.C. were legal residents of the state.
Sorting out the situation, the North Carolina trial court decided that both Spivey and Copeland should be parties to the case, Spivey as biological father, and Copeland as the person who was listed on the birth certificate and had actually served as A.C.C.‘s father since her birth. The court did not use the term “de facto father,” but that is essentially how it treated Copeland in allowing him to be a party. The court then approved a written agreement signed by Spivey, Copeland and Prashad, under which Copeland and Spivey were awarded primary legal and physical custody of A.C.C., and Prashad was awarded secondary legal and physical custody.
Copeland and Spivey then moved with A.C.C. to Fairfax County,Virginia. Seizing upon Virginia’s legal hostility to same-sex couples (evidence by having adopted both a statute and a constitutional amendment banning recognition of same-sex marriages, civil unions and domestic partnerships), Prashad filed petitions in the Fairfax Juvenile Court, seeking to have the North Carolina custody judgment registered with the court but with Copeland omitted as a parent, and also seeking custody of A.C.C. She specifically asked the court to exclude Copeland from having any parental rights, arguing that any acknowledgment of Copeland as a parent was an implicit recognition of the relationship between Copeland and Spivey in violation of Virginia law. Prashad also filed a petition to modify the North Carolina judgment so as to give her sole legal and physical custody of A.C.C.
On March 12, 2008, the Fairfax court registered the North Carolina court orders in their totality, declining Prashad‘s demand to exclude Copeland. Prashad appealed this decision to the Fairfax County Circuit Court, which affirmed, and then she took her appeal to the Virginia Court of Appeals, which also affirmed. The majority of the Court of Appeals panel ruled in an opinion by Judge Cleo E. Powell that under the Full Faith and Credit Clause of the U.S. Constitution, Virginia courts are obligated to recognize and enforce judicial orders concerning custody and jurisdiction of children that are issued by courts of other states that had proper jurisdiction over the parties and the subject matter of the case. Since Copeland, Spivey and the child were residents of North Carolina at the time the custody agreement was embodied in a court order there, the Juvenile Court properly registered it without any modification. The Court of Appeals made clear that its decision only concerned the registration of the North Carolina custody and visitation orders, pointing out that all the discussion in the appeal raised by Prashad about “homosexual marriage” and “same-sex relationships,” was irrelevant in the court‘s eyes to the specific issue that was being appealed.
The court also discussed the federal Parental Kidnapping Prevention Act, which was intended to avoid “jurisdictional competition and conflict between State courts” by making clear that courts must respect custody decrees by “sister states.” The court also noted that Virginia had adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which requires Virginia courts to “recognize and enforce” child custody determinations by the courts of other states. The court found that all the requirements of this statute were met by the North Carolina custody order.
Finally, the court found that the Virginia Marriage Amendment and the anti-same-sex marriage statute were essentially irrelevant to the issue of registering the North Carolina custody order because, as Judge Powell pointed out, “neither party is asking the Court to recognize Copeland and Spivey‘s relationship.” Furthermore, the North Carolina court, in determining that Copeland should be part of the custody proceeding there, had based this determination on Copeland’s long-standing relationship with the child, and not in any way on Copeland‘ s relationship with Spivey. As such, the Virginia amendment and statute were not implicated. This ruling does not end the matter, of course, because still pending before the Fairfax Juvenile Court is Prashad‘s separate petition to modify the custody award to give her sole legal and physical custody. In a long and technical dissent, one member of the court held that the appeal was not properly before the court because the Juvenile Court‘s order to register the North Carolina custody order was not a final order on the merits of the dispute between the parties, but merely a preliminary step that had to be accomplished before the Juvenile Court would address the merits of the modification petition. The dissenter did not state disagreement with the majority‘s analysis of the substantive legal issues concerning recognition of the North Carolina custody orders, but merely that the court should have denied the appeal without discussing those issues at this stage of the case.
Gregory R. Nevins, an attorney in Lambda Legal’s Atlanta Regional Office, represented Copeland and Spivey on the appeal, with participation of theACLUofVirginia and localVirginia counsel, Laurie Forbes. A.S.L.