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S.U. v. C.J.

Supreme Court of Appeals of West Virginia

November 4, 2019

S.U., Petitioner Below, Petitioner
v.
C.J., Respondent Below, Respondent

          (Mason County 16-D-233)

          MEMORANDUM DECISION

         Petitioner S.U.[1] ("Father") appeals the May 16, 2018, order of the Circuit Court of Mason County, West Virginia, wherein it refused his petition for appeal from an order by the Family Court of Mason County. The family court designated Respondent C.J. ("Mother") as the primary residential and custodial parent of the parties' four minor children. Petitioner raises several assignments of error all of which turn on his argument that the family court erred by rejecting his claim that Mother has no rights whatsoever to the parties' three youngest children because she was acting as his gestational surrogate.

         This Court has considered the parties' briefs, their oral arguments, and the record on appeal.[2] Upon review, the Court discerns no substantial question of law and no prejudicial error. Consequently, a memorandum decision affirming the order of the circuit court is the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

         I. Factual and Procedural History

         The parties, who never married, were in a relationship for approximately twelve years and have four children together. We note from the outset that Mother gave birth to all four children; their birth certificates provide that Father is their legal father and Mother is their legal mother. As explained below, the children were conceived in nonconventional ways.

         The parties attempted to have children through sexual intercourse but were unsuccessful. Relevant to these attempts is the fact that Father was listed as a female on his birth certificate. Father testified that he was not a binary male or female at birth, although he has always considered himself to be male.[3] Before the parties met, Father underwent surgeries to correct unspecified "anomalies" and had his ova (eggs)[4] harvested and stored. Mother testified that, until these proceedings, she was not aware that Father underwent such procedures.

         The parties' first child, G.U., was born in 2011. G.U. was conceived when Father, a registered nurse, performed an intrauterine insemination of Mother at home. At the time, Mother believed that Father was the sperm donor for this procedure. But Father did not (and apparently could not) provide the sperm. Father later refused to answer questions concerning the identity of the sperm donor. Thus, the record does not reflect who is G.U.'s biological father; however, Mother is his biological mother. Father criticized Mother for not losing enough of the weight she gained during her pregnancy with G.U. He became verbally abusive and insisted the couple have their next child by in vitro fertilization ("IVF").

         The parties' second child, Lo.U., was born in 2014. Lo.U. was conceived when Mother underwent IVF at the CNY Fertility Center ("Clinic") in New York. According to Father, the embryos used in the IVF procedure were from Father's previously harvested eggs and the sperm of an anonymous donor. However, at the time of the procedure, Mother believed that the embryos were from Father's sperm and an anonymous egg donor. Similarly, the parties' two youngest children, twins Z.U. and Lu.U., who were born in 2016, were conceived in the same manner at the Clinic. Thus, Father is the biological mother of the parties' three youngest children, having provided the eggs with which the embryos were created. It is undisputed that Mother has no genetic connection to the three youngest children.

         When Mother was pregnant with the twins, the parties' relationship deteriorated further and the verbal abuse from Father grew worse. Father served Mother with an eviction notice when she was hospitalized due to complications from this pregnancy. After the twins were born in October 2016, Mother never returned to Father's home.

         Shortly before the twins were born, Father filed a Petition for Declaration of Parentage and Motion to Seal Record in the Circuit Court of Kanawha County[5] in an attempt to prevent Mother's name from being listed on the twins' birth certificate. Father asserted the parties entered into a formal Custodial Agreement in 2005 that set forth the following: Father agreed to provide Mother with a biological child of her own and over whom the parties would share custody; after that child was born, Mother would act as a gestational surrogate for Father's child through IVF; and Father would have full rights and custody of any resulting child. Before the circuit court issued a ruling, Mother gave birth to the twins and this matter was ultimately transferred to the Family Court of Mason County where the parties resided.

         Father filed various motions relating to custody and parentage of the children, including motions to remove Mother from the three youngest children's birth certificates. In December 2016, the family court issued a temporary order granting Father custody of G.U. and Lo.U., and Mother custody of Z.U. and Lu.U.[6] The family court further ordered each parent time with all four children on alternating weekends. In March 2017, the family court ordered psychological evaluations for G.U. and Lo.U., and psychological/parental fitness evaluations for the parties. In August 2017, the family court denied Father's motion to amend the children's birth certificates.

         Over two days in October 2017, the family court held final hearings. The parties described the nature of their relationship in polar opposite terms. Father claimed Mother lived with him as a roommate and friend and the two never engaged in sexual relations. Mother claimed she and Father had intimate relations and lived together as a couple. Mother's family members, including her sister, corroborated her testimony and stated they believed the parties were a cohabitating couple.

         Father reiterated that the purported Custodial Agreement described above demonstrated the parties agreed that he would provide Mother with a biological child of her own and they would share equal custody of this child; and in exchange, Mother agreed to be a gestational surrogate for Father's children and he would have full rights and custody of those children. Father introduced a photocopy of the purported Custodial Agreement and claimed he could not locate the original. Father testified that the parties signed this document in 2005 and that it was notarized; but he offered no witness to its execution.[7] Mother emphatically denied that she agreed to be Father's gestational surrogate. Mother also denied that she signed the Custodial Agreement.

         Dr. Timothy Saar produced written reports concerning his evaluations of the parties and the two oldest children. According to Dr. Saar, the children viewed Mother as their mother and exhibited a close emotional bond with her. Dr. Saar recommended that Mother be designated the children's primary residential caretaker. With regard to Father, Dr. Saar indicated that he "exhibited psychological and behavioral factors which appear to be harmful to the children." This included Father's failure "to consider that the children would be emotionally harmed if [Mother] were eliminated from their lives"; Father's stated goal of "getting [Mother] out of the picture"; and the fact that "preventing emotional harm to the children was not a priority" for Father. These facts caused Dr. Saar to have significant concerns about Father having unsupervised contact with the children.

         In its order, the family court concluded that Mother had been the primary caregiver for the children. It noted that the children have a close emotional bond to Mother and she is "a fit and proper parent[.]" The family court concluded the purported Custodial Agreement was unenforceable because it could not conclude Mother signed the document. After finding that Mother had no biological relationship to the three youngest children, the family court applied the doctrine of psychological parent to find Mother's name should remain on the children's birth certificates. The family court found there had been physical and mental abuse and inappropriate behavior between the parties since their separation-primarily initiated by Father-and in at least one instance, his mother. The family court found some of these incidents occurred in the presence of the children and caused them emotional stress. The family court ordered Father to ...


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