Warren County DSS v. Garrelts (North Carolina 2021)

No. COA20-868 (N.C. Ct. Ap. 2021
June 2021

A determination of paternity affects a substantial right. As such, the applicable law when determining paternity is the law of the “situs of the claim” or in other words, the law of the state where the claim arises. The mother and defendant, who lived in Virginia, agreed the defendant would donate sperm for artificial insemination. The insemination happened in Virginia, the child was born there, and lived there until moving to California. In California, the mother began receiving public assistance. At California’s request, North Carolina brought a paternity action. The defendant argued Virginia law should apply to the paternity determination. In Virginia, sperm donors are not considered legal parents. However, the trial court, using an interpretation of the Full Faith and Credit Clause, applied North Carolina law. The final order named the Defendant was the legal parent and set current and retroactive support. The Defendant appealed. The appellate court reversed and remanded. The Full Faith and Credit Clause only applies to an existing judgment or order. There was no judgement in this case. A paternity law is substantive law so the correct law to be applied is the law of the “situs of the claim.” For these facts, that is Virginia. The parties made the agreement in Virginia, the insemination took place there, the child was born there, and the child and mother lived there until moving to California. This result ensures an equitable result. Parent can expect to be bound by the laws of the state of conception and won’t be able to forum shop for a more favorable outcome.