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Sex, support and the long arm of the law

If you beget a child beyond the borders of the commonwealth, you may not be able to get child support through a Virginia court.

A Virginia woman whose love affair with a filmmaker living in France left her with a 12-year-old daughter to support cannot sue the film maker for child support in Virginia, the Virginia Court of Appeals said today.

Although the father acknowledged his paternity from the outset and visited the child in Virginia early on, the child was not conceived in Virginia, and a Fairfax Circuit Court had no personal jurisdiction over the father, the appellate panel said. In Bergaust v. Flaherty, it upheld dismissal of the mother’s petition for support.

Jane Louise Bergaust traveled to Giverny, France in 1994 to visit her mother during the opening of the American Museum. There Bergaust met Edward Flaherty, an American filmmaker then living in France, who was hired to film the event. They stayed in touch after Bergaust returned to Virginia and she visited Flaherty in France again about 18 months later.

Bergaust spent several weeks in France, returning shortly before Christmas. She learned she was pregnant. She informed Flaherty. He stayed in touch and visited when the child was about seven months old. But he stopped calling several months later.

When the daughter was nearly 12 years old, she was watching a documentary on TV in which Flaherty appeared. The daughter recognized him from photos taken during his Virginia visit in 1997. The mother tracked Flaherty down to his current address in France and sued for support.

The Fairfax Circuit Court initially said it had personal jurisdiction over Flaherty, but prohibited him from objecting to Bergaust’s evidence or offering his own because he refused to cooperate with discovery. Flaherty did not appear at the trial. At the close of evidence, the court revisited the issue of jurisdiction, and changed its mind and dismissed Bergaust’s petition.

A Virginia court can exercise personal jurisdiction under the state’s long-arm statute if it can be shown the defendant has “conceived or fathered” a child in the commonwealth.

Bergaust argued that “fathered” could mean an acknowledgement of paternity, and her evidence, including Flaherty’s visit to Virginia, showed such an acknowledgement.

But the Court of Appeals said the General Assembly intended the statutory language to cover the act of procreation, with gender parity in its language: “conceived” for the woman who becomes pregnant, or “fathered” for the man who makes her pregnant.

The act of conceiving a child elsewhere may lead to a father’s presence or even his acknowledgement of paternity in Virginia, wrote Judge Robert J. Humphreys. But “given the words it chose, the General Assembly intended the long arm statute to apply only to both parties responsible for actually conceiving a child in Virginia,” the court concluded.
By Deborah Elkins

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