Will Virginia’s long arm statute confer jurisdiction for child support over a father of a child conceived in a foreign country?
In Bergaust v. Flaherty, Record No. 0650-10-4 (Va. App. 2011), the Court of Appeals of Virginia determined that it did not have personal jurisdiction over the father because the child was fathered and conceived in a foreign country, even though the child was born in Virginia, the father admitted paternity, the father visited the mother and child in Virginia, and the mother and child lived in Virginia. Jurisdiction is the power of a court to decide a given matter involving certain parties. Due process requires that a person have some kind of connection to the state before that person can be brought into court to answer a claim. Like all the states in the U.S., Virginia has a “long arm” statute that describes the type of connection necessary to make a person answer a case in Virginia. If a person disputes the necessary connection with the Commonwealth of Virginia, that person can make a special appearance to contest the right of the state to exercise power over that particular individual.
In the Bergaust case, the father and mother met in France and continued a long-distance phone relationship while the mother lived in Virginia. Nearly two years later, the mother returned to France to visit, and during that period, she conceived a child. Upon discovery, the father continued contact with the mother for approximately a year, until he broke off communication. Twelve years later, the mother found the father’s contact information and she filed a petition in the appropriate Virginia county’s Juvenile and Domestic Relations District Court (J&DRC) to establish paternity and set child support. The father filed a motion to dismiss based upon a lack of personal jurisdiction, and the Juvenile and Domestic Relations District Court judge dismissed the cases. The mother appealed to the same Virginia county’s Circuit Court. The circuit court judge determined that Virginia could not exercise personal jurisdiction over the father. On appeal to the Court of Appeals, the mother challenged that ruling that Virginia could not exercise personal jurisdiction over the father under Virginia’s long arm statute.
Upon examination, the Court of Appeals noted Cabaniss v. Cabiniss, 46 Va. App. 595, 620 S.E.2d 559 (2005), and affirmed that in obtaining the necessary personal jurisdiction over an out-of-state defendant in a child support claim, the evidence must establish “at a minimum, a connection to Virginia that is recognized by Virginia’s long-arm statute.” As Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533, 238 S.E.2d 800 (1977) establishes, the long-arm statute exists “to assert jurisdiction, to the extent permissible under the Due Process Clause of the Constitution of the United States, over nonresidents who engage in some purposeful activity in Virginia.” Under the terms of Virginia’s long-arm statute, found in the Virginia Code §8.01-328.1(A)(8), “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s . . . having (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth.” By law, once the Court has accepted that the long-arm statute is satisfied, the inquiry is only “whether the defendant has sufficient ‘minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Young v. New Haven Advocate, 315 F.3d 256, (4th Cir. 2002) (quoting Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945).
In this case, the question of personal jurisdiction rested on the determination of the words “conceived or fathered” a child in the Commonwealth. The father asserted that according to the Code, the plain language of the statute should apply, and only the act of procreated or the mother’s becoming pregnant fell within the statute. The mother argued, however, the statute should be read more broadly to encompass the word “fathered” as meaning acknowledging paternity.
The Court noted that Hubbard v. Henrico Ltd. P’shp, 255 Va. 335, 497 S.E.2d 335 (1998) applied, meaning that when “a statute contains no express definition of a term . . . [we] infer the legislature’s intent from the plain meaning of the language used. Thus, by applying the plain and ordinary meaning found in Webster’s Third New International Dictionary, the Court of Appeals determined that “conceive” means “to become pregnant with” or “to beget,” while “fathered” means “to make oneself the father of: beget.” Thus, because both the mother and the father agreed that the conception of the child occurred in France, the child was not “conceived or fathered” in the Commonwealth for the purposes of the long-arm statute. As a result, the Court of Appeals held that it did not have personal jurisdiction and affirmed the previous judgment.
You should consult with your Virginia family law lawyer or Richmond divorce lawyer James H. Wilson, Jr., concerning whether a nonresident has sufficient contacts with the Commonwealth of Virginia to fall within Virginia’s long arm jurisdiction and be forced to defend a given case in Virginia.