... Because Everyone Can Build a Family

The Virginia Supreme Court has done the right thing. Despite the Virginia Code’s stated preference for married couples, the VA Supreme Court agreed in a unanimous ruling (issued in L.F. v. Breit, January 10, 2013) that a biological father has the ability to establish paternity rights even if he and the mother were unmarried.

Essentially, the child’s interest in having two parents trumped the Commonwealth’s interest in promoting marriage. Indeed, the Court concluded that the parent-child relationship rose to the level of a constitutional right, explaining that unmarried father’s interest in personal contact with his child “acquired substantial protection under the Due Process Clause.”

The court explained that it was required to read Virginia’s Assisted Conception Act in a constitutional manner: “Virginia’s marital preference in assisted conception protects an intact family from intervention from third-party strangers, but it was not intended to deprive a child of a responsible, involved parent.”

What is interesting, therefore, is that the Court found that the unmarried father was the legitimate father of his biological child when analyzed from a purely legal standpoint — even though the birth of his daughter would have been characterized as “out-of-wedlock” and therefore “illegitimate” from the perspective of the society in the conservative Old Dominion! Kudos, Virginia Supreme Court! Who said you are “stodgy”?

Facts: William (“Billy”) Breit and Beverley Mason had a long-term relationship in which they lived together but never married. With the assistance of IVF, they had a baby girl, L.F. Prior to the baby’s birth, Mason and Breit entered into a written custody and visitation agreement in which they agreed that Breit would have continued visitation rights because it was “in the child’s best interests.” Subsequent to the baby’s birth, they sent out a joint birth announcement giving the baby a hyphenated last-name. They also jointly executed an “Acknowledgement of Paternity” pursuant to Virginia’s parentage act, VA Code § 20– 49.1(B)(2). Four months later, the couple separated; and approximately one year later, Mason cut off Breit from all further contact with their daughter.

In response to Breit’s subsequent petition for custody and visitation rights, Mason argued that the Virginia Assisted Conception Act applies only to “married couples” and, therefore, prevented Breit from seeking relief under that statute. Alternatively, she argued that Breit was “only a donor” and, as such, had no parental rights under that Act. Further, she argued that because they were not married at the time their daughter was conceived or born, he had no parental rights and no ability to establish parental rights, under either the Assisted Conception Act or under Virginia’s Parentage Act.

The lower court agreed with Mason. The court of appeals reversed. The Virginia Supreme Court affirmed the court of appeals, concluding that Breit has the legal right to establish his parentage – for all the legal reasons set forth at the outset.

But, let’s step back from all the legal arguments for one minute… as to whether a particular act permits the parent-child relationship to exist and, if so, which statute should prevail. The undisputed facts are that this man was involved in the baby/toddler’s life until she was 13 months old. Then, he was abruptly cut off from further contact. Think of this if you are a parent reading this. Think of how your child feels if you have children… or if you can pull up any of your childhood memories, how you felt when parents did not follow through on promises. The dad has not seen his daughter for more than a year and a half… and not for lack of trying. There have been no allegations of wrongdoing on his part. Does this sound like it is in the child’s best interest? I do not know this man, but I feel sorry for him. And I feel very sorry for the daughter, who has missed out on having a second parent for half her life…all presumably because of bickering between ex-lovers.

That is why I think the court got this right. It makes no difference to the child whether her parents went through a divorce or a break-up. They are still her parents.

In fact, it would make no difference to a child if her parents were two dads. In my view, a very interesting question would be what if a similar case came to the court in Virginia in which there were two dads who co-parented a child and one was now trying to prevent the other from seeing his child. Could L.F. v. Breit be used as precedent? The Court stated in its decision that “it is incumbent on courts to see that the best interests of a child prevail, particularly when one parent intends to deprive the child of a relationship with the other parent.” So, one would hope so. Yet, given the laws on the books in Virginia regarding same-sex couples, one wonders if the court would dare to go so far.

One can hope. It would, after all, clearly be in the best interest of the child.

Diane S. Hinson, Esq.