[Posted December 28, 2011] The Court of Appeals of Virginia has one last love letter for us before the calendar turns. In Breit v. Mason, a unanimous panel of the court reverses a trial court’s rulings in a paternity case, using some fairly strong language in doing so.

This is an appeal that could never have made the pages of Grattan’s Reports back in the Nineteenth Century. It involves the question of what rights a sperm donor has when a child is conceived in vitro. Normally, the answer is None; a statute provides that “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.”

But in this case, we don’t have an anonymous sperm donor who’s helping out an infertile couple. Here, the father and mother of the child had tried for some time through (ahem) conventional means to conceive, but without success. They engaged the help of a fertility expert, and eventually in-vitro fertilization worked. Nine months later, the child was born – a baby girl who was no doubt adored by both parents.

The monkey wrench here is that the father and mother were never married to each other. Now go back and read that statutory excerpt. See the problem?

That problem was late in developing. The happy couple delighted in announcing the news to family and friends; they continued to live together in harmony for more than a year after the birth. Over that time, the father enjoyed a warm relationship with a child who was unquestionably his flesh and blood. Today’s opinion also notes that his parents developed a relationship with their biological granddaughter.

Now for the onset of the problem: When the child was about 13 months old, the mother decided that she’d had enough of the father. She “unilaterally terminated all contact between” the father and the little girl, prompting the father to file legal proceedings to establish his paternal relationship.

In the trial court, a judge designate granted a plea in bar filed by the mother (and an essentially identical one filed by the child’s counsel, an attorney hired by the mother), ruling that the father had no legal standing to bring this action, because he was merely a sperm donor, not “the parent of the child.”

Today, the CAV panel reverses, and even using the diplomatic language of appellate opinions, it has some choice words for the trial-court judge. The court points to several factors that compel the conclusion that the father was indeed intended, by everyone involved, to be regarded as the little girl’s legal father. The court notes that the trial court’s approach “results in a manifest absurdity” in that a person who’s obviously the child’s biological parent “could never establish parentage of the child.” The assisted-conception statutes were never intended to compel such a result, the panel finds today.

There’s more. The court today reverses the trial court’s decision to appoint the child’s lawyer (remember, the one hired by the mother) as her guardian ad litem. A GAL is supposed to act in a neutral way, without favoring either parent, protecting only the best interest of the child. I’ve been told that at oral argument, one of the judges on the panel – probably Chief Judge Felton, the author of today’s opinion – asked the guardian, “Is it your position that the best interest of this child would be for her not to have a father?”

Even reviewing this ruling under the deferential standard of abuse of discretion, the appellate court finds it indefensible; it orders the trial court on remand to appoint someone else to represent the child as guardian ad litem.

On this issue, there’s one issue that the court didn’t reach that’s worth mentioning. The father had objected to the appointment of this GAL not merely because he had been hired by the mother (though that was no doubt the primary reason for his opposition); he also argued that this attorney had not gone through the required training to be certified as a court-approved guardian. While today’s opinion mentions the father’s argument, the decision rests on the more fundamental finding of an obvious concern about favoritism.

One last issue remains: The court rejects the father’s request for an award of appellate attorney’s fees, even though he clearly wins this appeal. The court notes that this appeal presented an issue of first impression, and the mother’s appellate-court arguments “were not so frivolous as to justify an award of fees and costs.” In my opinion, that ruling is driven at least in part by the posture of the case, with mother defending a ruling made by a trial court. If she had lost below and had raised these arguments in an attempt to get a reversal, the outcome of this fee request might be different. Then again, she had at least a plausible place to hang her hat, in the first-blush reading of the statute I quoted above.