Supreme Court of Virginia Recognizes that Children Need a Mother AND a Father

The Center for Global Justice, Human Rights, and the Rule of Law filed an amicus brief in August on behalf of the best interests of a child caught in the middle of her parents assisted reproduction parentage dispute.  Children resulting from assisted reproductive techniques (ART) are extremely vulnerable, and absolutely require their parents to protect their interests.  When that doesn’t happen, the child is irreparably harmed.  In this case, a court was asked to intervene to remedy this family breakdown, and the Center for Global Justice participated in that litigation. Our work in this area has made a tremendous difference in that child’s life – she will now be able to know her father, as well as her mother. 

The Center argued that a child should not be deprived of a parent, in this case her father, when her other parent (in this case her mother) argued that her father was simply a sperm donor rather than an intended parent.  In the case of L.F. v. Mason v. Breit  we saw an opportunity for a child to be deprived forever of one of her intended parents, something certainly not in her best interests.  Our brief focused on the injustice in that scenario for any child, arguing that a child has an interest in knowing her parents that should be protected by federal constitutional law, Virginia law, and good public policy on families.   The Court adopted concepts set forth in our brief (and used some of our research verbatim) regarding the best interests of a child resting in the opportunity to have both a father and a mother involved in her life; and the duty of the State to protect those interests when parents do not. The Supreme Court of Virginia recognized that children need a mother AND a father, and should be able to know and have a relationship with both parents. 

Here is an excerpt from pages 25-26 of the opinion, which is available for full review at http://www.courts.state.va.us/opinions/opnscvwp/1120158.pdf.

“…[W]e reject the notion that children have a purported right or interest in not having a father. To the contrary, Virginia case law makes clear that it is in a child’s best interests to have the support and involvement of both a mother and a father, even if they are unmarried. See Copeland, 282 Va. at 194-95, 715 S.E.2d at 17; Wilkerson v. Wilkerson, 214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973) (recognizing that one parent cannot arbitrarily deprive a child of a relationship with the other parent); see also June Carbone, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 Wm. & Mary Bill Rts. J. 1011, 1023-24 (2003) (discussing children’s interests in the continuing involvement of both parents in the child’s life). Although our analysis in this case rests on Breit’s constitutionally protected rights as a parent, we recognize that children also have a liberty interest in establishing relationships with their parents. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989). Consequently, 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. "The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself . . . . Statutes terminating the legal relationship between [a] parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship." Weaver v. Roanoke Dep’t of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). Here, L.F. faces a potential loss of liberty in the form of deprivation of a relationship with her biological father, solely because she was conceived through assisted conception by unmarried parents. 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.

This case is most significant because it is the first time that any court has recognized a child’s interest in knowing and having a relationship with her parents.  It is particularly important because this interest is recognized not in a rights framework, but in a best interests framework.  Parents have a duty to protect the best interests of their children.  I have written on this before in my piece called Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337(2008) which can be downloaded at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957143.  I have also discussed the problem that children’s rights do not protect children in my piece entitled Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int’l. L. Rev. 57 (Summer 2009), also downloadable at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962681.

The work of this brief on behalf of the Center for Global Justice was done by students and faculty together as part of the Child Advocacy Practicum, a curricular component of the Center for Global Justice.  These efforts made it possible for the Center to submit a brief that made a tremendous difference in the life of a child, restoring her to her father, as well as to her mother, constitutionally guaranteeing her both parents. 

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