Virginia Court Upholds NC Custody Ruling

Special Report - December 3, 2009
Two men, who are registered as domestic partners in California and are current residents of Virginia, have been granted primary custody of a five-year old girl, who was conceived by a surrogate mother through artificial insemination. In a ruling issued November 24, a three-judge panel of the Court of Appeals of Virginia determined that the custody order handed down by a North Carolina court must be recognized under the Full Faith and Credit clause of the United States Constitution.

Tanya Prashad, the surrogate mother who was artificially inseminated with sperm from both Roberto-Luis Copeland and Philip Spivey after entering into a contract with the couple in September 2003, sought custody of the girl after the men moved to North Carolina and ceased visitation opportunities for Prashad. The complaint she filed in North Carolina in Gaston County District Court also requested a paternity test to determine parenthood. Copeland’s name had been entered as the father on the child’s birth certificate. The Judge-ordered paternity test found that Spivey was the biological father. The court determined that, despite the contract having been entered into in Minnesota, the current residency of Copeland and Spivey in North Carolina gave the court proper jurisdiction to determine custody. For the purposes of the custody ruling, the court accepted both Copeland and Spivey as parties to the case. Spivey’s standing was based on biological fatherhood. The court allowed Copeland to intervene because his name was listed on the birth certificate and he had been parenting the child since birth. In September 2006, Spivey and Copeland were awarded primary legal and physical custody, while Prashad was awarded secondary legal and physical custody.

When Copeland and Spivey moved with their daughter to Virginia, Prashad filed petitions in December 2007 in Fairfax County, VA asking to register the North Carolina custody judgment with the court, but to omit the parental and custodial rights of Copeland and grant Prashad sole legal and physical custody. She argued that recognizing both men, and specifically Copeland, as parents constituted a violation of Virginia’s marriage law and constitutional amendment defining marriage as the union of a man and a woman by implicitly recognizing the same-sex relationship of Copeland and Spivey. In March 2008, the Fairfax court did register the custody agreement, but did not alter the North Carolina court orders in any way. Prashad appealed to both the Fairfax County Circuit Court and the Virginia Court of Appeals. Both Courts upheld the lower court ruling that the custody orders would be registered in their entirety. Appeals Court Judge Cleo E. Powell’s majority opinion stated that under the Full Faith and Credit Clause of the U.S. Constitution that applies to other states’ court judgments, “Virginia must extend full faith and credit to the custody orders.” In addition, the opinion also cited the Parental Kidnapping Prevention Act (PKPA), which “imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the [PKPA].”

Prashad had argued that the federal Defense of Marriage Act (DOMA), which says “no State shall be required to accord full faith and credit to a marriage license issued by another State if it relates to a relationship between persons of the same sex”, “trumps the PKPA and creates an exception to the Full Faith and Credit Clause with regard to custody determinations involving same-sex couples in a relationship that is tantamount to marriage. “ Thus, Prashad contended “that Virginia need not extend full faith and credit to the custody orders. She also argued that registering the custody orders in their entirety under the UCCJEA violates the Virginia Constitution, specifically, the Virginia Marriage Amendment,” which “prohibits the Commonwealth creating or recognizing relationships that are “assigned the rights, benefits, obligations, qualities, or effects of marriage.”

The Court found that DOMA and VMA are “inapplicable” because “neither party is asking the Court to recognize Copeland and Spivey’s relationship as a valid marriage.” The majority opinion went on to say “that the North Carolina court determined that Copeland’s custodial rights arose out of the fact that he has a legitimate interest in A.C.C. (the child) for purposes of custody and visitation, and not from his relationship with Spivey being treated as a marriage under the laws of North Carolina.”

Prashad’s motion seeking sole custody of the girl is still pending in a lower Virginia court. Copeland and Spivey have been represented by the local counsel for the ACLU of Virginia and the Atlanta Regional Office of the pro-homosexual legal group, Lambda Legal.

“This case highlights why North Carolina needs to make it very clear that the definition of marriage remains the same as always—one man and one woman,” said Bill Brooks, president of the North Carolina Family Policy Council. “We are entering the sixth year that our legislators have refused to give North Carolina citizens the opportunity to vote on whether to protect this most foundational institution. We cannot waste anymore time. The chaos that comes from a redefinition of the most foundational aspects of our society is already playing out in our courts as seen in this case.”

Copyright © 2009. North Carolina Family Policy Council. All rights reserved.