By Bob Roehr
Virginia Appeals Court upholds Vermont jurisdiction
The Court of Appeals of Virginia has squashed the attempt by one ex-partner in a lesbian relationship to go jurisdiction shopping when it comes to visitation rights to their daughter. The dispute has ricocheted between courts in Vermont and Virginia and now seems likely to be resolved.
Lisa Miller and Janet Jenkins lived together for several years in Virginia before traveling to Vermont and entering into a civil union in December 2000. Using artificial insemination to become pregnant, Lisa gave birth to Isabella back in Virginia in April 2002. The family moved to Vermont later that summer but after about a year the relationship broke up and Lisa moved back to Virginia with the child.
The pair began legal proceedings to dissolve the relationship and a judge awarded interim visitation rights to Janet. But Lisa later filed suit in Virginia, asking that Janet be declared to have no parental rights under Virginia law. She also “found” Jesus and no longer considers herself to be a lesbian. The Virginia legal system is not particularly gay friendly and the trial judge ruled in Lisa’s favor.
But the case originally was filed in Vermont, and in August the Vermont Supreme Court unanimously ruled that under the federal Parental Kidnapping Protection Act (PKPA), it was the court of jurisdiction. Their decision read in part, “This case is about whether the Vermont court must give full faith and credit to the Virginia court, and not the reverse”.
Attorneys for the conservative Liberty Counsel had tried to invoke the Defense of Marriage Act (DOMA), the antigay federal law that restricts marriage to between a man and a woman, in advancing the case of their client, as well as their own antigay agenda.
In their unanimous ruling on Nov. 28, the Court of Appeals of Virginia sided with their Vermont brethren in ruling that the PKPA is the controlling legal statute in this instance and hence, the Vermont court had jurisdiction.
The decision took pains to note, “This case does not place before us the question of whether Virginia recognizes the civil union entered into by the parties in Vermont. The only question before us is whether…Virginia can deny full faith and credit to the orders of the Vermont court. It cannot.”
“This is absolutely wonderful news for Janet and her daughter,” said Joseph Price, the Washington, DC, attorney who represented Jenkins. “No parent has a right to take a child and go to another stae in hopes of getting a second custody decision that they like better. Today the Court of Appeals of Virginia reaffirmed this fundamental principle and made clear that the law applies equally to all parents, gay or straight.”
Lambda Legal attorney Greg Nevins said the decision “rightly recognized that federal law protects parents against the very thing that Lisa Miller did – parents cannot shop around looking for a court to give them sole custody.”
Earlier this month a Vermont judge declared Miller in contempt of court for not allowing Jenkins her visitation and imposed a fine of $9,166.50, which will escalated by $25 per day. It is unclear whether she will appeal the Virginia decision or not.