In its recent opinion in Warren County Department of Social Services ex rel. Glenn v. Garrelts, the North Carolina Court of Appeals addressed an unusual choice of law issue.  In the recitation below, for ease of reading, I will refer to the mother as “plaintiff,” even though the suit was brought on the mother’s behalf by Warren County DSS.

Plaintiff and her same-sex partner wanted to conceive a child, so plaintiff asked defendant, a male friend, to serve as sperm donor.  When he agreed, plaintiff and defendant entered into a “verbal contract,” the terms of which were not revealed in the record.  The insemination took place in Virginia, where plaintiff resided until the baby was born in December 2011.  The only parent named on the child’s birth certificate was plaintiff.

About a year later, plaintiff, plaintiff’s partner, and defendant appeared in a Virginia court for defendant to sign over his parental right so that plaintiff and her partner could adopt the child.  The outcome of this proceeding was not in the record on appeal submitted to the Court of Appeals.  In 2014, plaintiff moved to California and began receiving public assistance in that state.  Defendant remained in North Carolina.

In 2019, Warren County DSS filed an action in North Carolina district court alleging that defendant, as father of the child, was obligated to pay child support.  In his answer, defendant denied any such obligation.  At a hearing, defendant argued that the conception and birth occurred in Virginia and that under a Virginia statute, a sperm donor “is not the parent of a child conceived through assisted conception.”  North Carolina law has no similar provision exempting such sperm donors.  DSS responded that under the United States Constitution’s Full Faith and Credit Clause, the North Carolina court was not obligated to apply Virginia law and that North Carolina law should apply as a matter of public policy.

The trial court issued an Order finding that defendant was the biological father, that defendant was responsible for past due child support, and that defendant was to pay $50.00/month child support thereafter.  Defendant appealed.

In a published opinion, the Court of Appeals reversed (Judge Jackson, with Judges Dietz and Collins).  The Court first observed that the Full Faith and Credit Clause applies to judgments and thus was not relevant to the case.

The Court then turned to the critical issue before it, the question of which state’s law applied.  The Court cited Martin Marietta Materials, Inc. v. Bondhu, LLC, 241 N.C. App. 81, 772 S.E.2d 143 (2015), for the proposition that North Carolina’s choice of law rules apply the substantive law of the state where the action accrued [lex loci[ and the procedural rules of the state where the claim is brought [lex fori].  Thus, the question was whether a paternity statute was procedural or substantive.  The Court determined that a paternity law is substantive.  Therefore, the rights of the parties would be determined by the law of the situs of the claim.

Then the Court considered the correct situs of a paternity claim.  This issue is one of first impression in North Carolina.  After reviewing a number of cases from other states, the Court concluded that the proper situs of this paternity dispute is Virginia.  Virginia was where plaintiff and defendant entered their verbal contract, where the artificial insemination occurred, and where the baby was born and, for several years, raised.

The Court noted that this result coincides with the natural expectations of the parties to this case.  In addition, the Court observed that forum shopping would be the predictable result of allowing a parent to move to and bring a paternity action in any state with favorable laws.  Thus, the Court held that “[u]nder our state’s choice of law principles, we must follow the paternity law of the state where the insemination and conception occurred.”  The Court then remanded the case to the trial court for further proceedings.

Choice of law issues can be complicated, raising such questions as which matters are procedural and which are substantive, the situs of the claim, whether the action is more like a tort or a contract, etc.  In addition, everyone at the trial court apparently was distracted by the irrelevant Full Faith and Credit argument.  Because this case addressed at least one issue of first impression, perhaps the Supreme Court will take an interest.  Or we may learn from the trial court on remand whether Virginia really is for lovers.  We shall see.

–Bob Edmunds