Yesterday, a Virginia appeals court again reiterated the basic principle of child custody law that every state must enforce the custody orders of other states. In Prashad v. Copeland, a woman who bore a now 5-year-old child as a surrogate mother for a gay male couple, argued that Virginia should not register custody orders from a North Carolina court to the extent that those orders confer parental custodial rights on the biological father’s partner. The North Carolina order was the result of a consent agreement signed by the three parties awarding primary legal and physical custody to the gay male couple and secondary legal and physical custody to the surrogate mother.
The trial court ruled that North Carolina had jurisdiction to issue the custody orders and that, as in Miller-Jenkins, the federal Parental Kidnapping Prevention Act and Virginia law require Virginia to give those orders full faith and credit. Prashad argued that, pursuant to Virginia’s Marriage Affirmation Act and Marriage Constitutional Amendment, the North Carolina orders need not be honored. The trial court rejected that argument, and yesterday's appeals court ruling affirmed the trial court. The opinion notes:
Although there has been much discussion concerning homosexual marriage and same-sex relationships, both at the trial level and before this Court, neither of the parties is seeking to have the civil union between Copeland and Spivey recognized under Virginia law. Accordingly, this case is not about homosexual marriage, civil unions, or same-sex relationships.
The court specifically said that the nonbiological father had been permitted to intervene in the North Carolina custody case because he had been a "full-time parent" to the child since birth (almost two years at the time), not because of his relationship with the biological father. His custody rights arose from his interest in the child, not from the relationship between the two men "being treated as a marriage under the laws of North Carolina." (which, of course, the court points out, North Carolina would not do because of its own DOMA.)
The case reiterates the number one lesson for same-sex couples with children; it is critical to obtain a court order solidifying a relationship between a nonbiological parent and a child. In the few states that do confer parentage on a nonbiological parent based on a relationship (marriage, civil union, domestic partnership) with the biological parent, the parental relationship is vulnerable in other states if there is no court order.
Although this particular surrogacy arrangement turned adversarial, I've heard from two different sources about gay male couples who, over years, remain connected to the surrogate mother who bore their child. The first source was noted sociologist Judith Stacey, who has studied such family configurations, and I hope will be writing about them soon. The second source was a program for experienced LGBT family law lawyers in New York in September at which some of the gay couples themselves described their ongoing relationships with the child's surrogate mother. When a lesbian couple uses a known sperm donor and that person has a relationship with the child, it can also go very well or very badly (or in between). In both instances, legal recognition of the core family unit is critical; then the child's parents can make decisions based on what they believe to be best for their child, without fear that a court will attach parental rights to someone outside that unit.