Full Faith & Credit for Gay Couple's Out-of-State Custody Order, TP v. PS & RC (Virginia Court of Appeals).
Pursuant to a surrogacy agreement, T, a Minnesota resident, was inseminated with the sperm of P and R, who then lived in North Carolina. T gave birth to a daughter, who turned out to be the biological daughter of P. After the child was born, in 2004, P and R brought her to live with them in North Carolina. In 2005, T filed a custody action in North Carolina. In 2006, the North Carolina court entered a consent, granting primary legal and physical custody to P and R, and visitation to T. P and R and the child subsequently moved to Virginia. In 2008, T requested that the Fairfax County Juvenile and Domestic Relations Court register the order, but only insofar as it adjudicated the rights of her and the biological father, P – and to exclude any rights granted to R. She argued that Virginia’s constitutional amendment prohibiting same-sex marriage and the Marriage Affirmation Act prohibited Virginia courts from recognizing the North Carolina order to the extent that it granted custodial rights to R. The J&DR Court instead registered the order in its entirety, and the Circuit Court affirmed. T appealed to the Virginia Court of Appeals. On March 16, 2009, we filed a brief on behalf of P and R, arguing that both state and federal law required the Virginia courts to register the North Carolina order in its entirety. Arguments were heard on June 16 and on November 24, 2009, the Court of Appeals ruled in our favor, holding that the entire order must be registered.
