Roberto-Luis Copeland and Philip Spivey are a gay couple. They wanted to become parents. In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad. It’s described in the opinion as a surrogacy agreement.
Prashad was inseminated with sperm from both men. She became pregnant and ACC was born in Minnesota on August 10, 2004. Now I don’t know offhand what the law about surrogacy in Minnesota is. But I believe, from the events that followed, that Prashad was and remains the child’s mother.
Figuring out the father at the time of birth is a different matter. It doesn’t really detain the Virgina Court of Appeals in this decision, but I’d like to think about it. At least by the time of litigation, Prashad was married. If she was married when she gave birth, then you might consider her husband (who was surely not genetically related to the child) to be a legal parent, or at least to have the benefit of a presumption of parenthood.
Alternatively, you could take the DNA based approach in which case either Copeland or Spivey would be the father. But no one did testing to determine which. Copeland was, however, listed on the birth certificate.
Just five days after ACC’s birth, Copeland and Spivey moved, with ACC, to North Carolina. They did so with Prashad’s consent. Prashad visited ACC on several occasions, but things seemed to deteriorate. By February 2005 (which is only six months after the move to NC) it had reached a point where Prashad’s requests to see ACC went unanswered.
In April 2005 Prashad and her husband went to NC with the intent of getting ACC and taking her with them. Copeland and Spivey did not let her see the child. After Prashad and her husband left, Copeland and Spivey moved to California. In May 2005 Copeland and Spivey entered into a CA domestic partnership. Some time after that they returned to NC and eventually moved from there to Virigina.
Some time before August 2005, Prashad filed an action in North Carolina seeking to determine paternity and obtain custody of ACC. This case was filed against Copeland (I assume because he was listed on the birth certificate.) In August the court ordered DNA tests done and by October it was clear that Spivey was genetically related to ACC. On this basis Spivey intervened in the case Prashad had filed against Copeland.
Eventually the case settled and as a result of the agreement of the parties, in September, 2006 a North Carolina court gave Copeland and Spivey primary legal and physical custody and Prashad secondary physical and legal custody. It appears to me that the court recognized Copeland’s interest in participating in the case because of his relationship with ACC. But it isn’t at all clear to me whether Copeland was recognized as a parent.
In December 2007 (by which time I assume Copeland, Spivey and ACC had moved to Virginia) Prashad filed petitions in a Virginia court seeking primary custody. She also asked the court to recognize only Spivey’s rights vis-a-vis ACC. Her argument to excise Copeland from the case rested on Virginia’s established refusal to recognize relationships between same sex couples.
In fact, the Virgina Court of Appeals did not consider this issue. It viewed the case as involving only the registration/enforcement of orders issued from a court in another state (North Carolina). It found it was obliged to give effect to the NC orders under the Full Faith and Credit of the US Constitution and the Parental Kidnapping Prevention Act (PKPA).
Prashad tried to argue that the Defense of Marriage Act (DOMA) created an exception to the FFC and allowed VA to refuse to recognize out-of-state same-sex relationships. But the court found this had no bearing here. The NC disposition of the case didn’t turn on the relationship between the two men. Rather, Copeland’s participation in the NC case arose because of his relationship to ACC.
As I said, it is a complicated case. And it’s probably not over as Prashad, who is a legal parent of the child, can seek modification of custody. And even if she cannot modify custody, she is entitled to visitation with ACC. Thus, this rather tangled tale must continue one how or another.
I do wonder whether Copeland has any particular recognized legal status. It seems clear he is not a parent. (I don’t think North Carolina recognized him as such.) But he has some recognized relationship with the child. I am just not sure what it is.