Why Mom Had to Personally Serve Dad Visiting Virginia
if Dad Never Had Sex in the Commonwealth

            Imagine a man who lived in France got you pregnant in France and then visited Virginia. Don’t you think personal service on him in Virginia would be your ticket to Virginia child support? It seems obvious to me, but last month the Court of Appeals had to teach a mother that lesson.

            Here is what happened in a nutshell:  A Virginia woman visited France and met an American living there. They slept together. She came home to Virginia and gave birth to their child. Dad visited Virginia once to see the baby, before returning to France.

             Mom sued dad for child support in Virginia, and apparently delivered the suit papers to him in France. Do you see the problem with this? The child was “Made in France”. The parents never had sex in Virginia. Sexual intercourse only establishes personal jurisdiction in Virginia over a non-resident of Virginia if the sex act occurs on Virginia soil!  Virginia has no jurisdiction over fathers who reside and conceive their child in some other place.

             This mother made three huge mistakes. (1) She didn’t serve dad when he visited their child. (2) She misinterpreted the plain-as-day, sex-in-Virginia prerequisite for Virginia jurisdiction based on conception. (3) She did not simply go after the dad for child support in France.

            Option three is probably still open to the mother. Why she did not go to a French lawyer from the outset, I have no idea. And why people litigate and appeal such tenuous legal positions, I may never understand.

[1] Bergaust v. Flaherty, VA App, Record No. 0650-10-4, January 11, 2011.

[2] The Virginia long arm statute addressing child support requires that a person “conceived or fathered a child in this Commonwealth”. § 8.01-328.1(A)(8), VA Code. It is the geographic mandate of the phrase that the mother ignored.