("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.
Court has considered the parties' briefs, their oral
arguments, and the record on appeal. 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
Factual and Procedural History
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
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. Before the parties met, Father underwent
surgeries to correct unspecified "anomalies" and
had his ova (eggs) harvested and stored. Mother testified
that, until these proceedings, she was not aware that Father
underwent such procedures.
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
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.
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.
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 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
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. 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.
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.
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. Mother emphatically denied that she
agreed to be Father's gestational surrogate. Mother also
denied that she signed the Custodial Agreement.
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.
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