Advertisement

Virginia Supreme Court rules in child visitation case

By Lisa Keen

Keen News Service

In a case that could be on its way to the U.S. Supreme Court for a second time, the Virginia Supreme Court today unanimously upheld a decision that a woman living in Virginia with a child she had with another woman must comply with a visitation order from a court in Vermont, which recognized their civil union relationship.
Virginia enacted a law in 2004 that prohibits the recognition of same-sex relationships from any other state and enacted a similar constitutional amendment in 2007.
Greg Nevins, senior staff attorney for the Atlanta office of Lambda Legal Defense and Education Fund, downplayed the decision, noting it was based on a procedural issue rather than one involving the merits of recognizing same-sex relationships. But he acknowledged that the decision does establish that "there's not a gay exception" to laws which protect children. And attorneys for the Virginia woman say they will not give up.
The case implicated two state laws banning recognition of same-sex relationships and two federal laws: the Defense of Marriage Act and the Parental Kidnapping Prevention Act. DOMA allows states to deny recognition to same-sex relationships validated by law in other states. The kidnapping law prohibits state courts from issuing custody and visitation decisions in cases that have already been legitimately ruled on in another state. The law was passed to try and end a practice of some parents to circumvent legitimate family court decisions in their home state by taking their children to another state and obtaining an order to their liking.
A Virginia appeals court ruled that the kidnapping law trumps both the state and federal anti-gay laws and ordered a Virginia woman, Lisa Miller, to comply with a Vermont Supreme Court ruling granting visitation to her former civil union partner, Janet Jenkins. The Virginia Supreme Court's ruling June 6 upheld that decision.
Miller and Jenkins met and lived in Virginia before moving to Vermont where they obtained a civil union license in 2000. In 2002, they had a baby together but did not establish any other legal rights – such as adoption or a parenting agreement – between Jenkins and the child. A year later, the couple split up and Miller, the biological mother, moved back to Virginia with the child. There, she filed legal actions, first in Vermont and then in Virginia to dissolve the civil union and secure custody of the child. She also sought child support from Jenkins.
But in July 2004, after Virginia enacted its new statute prohibiting any recognition of same-sex relationships, Miller asked a Virginia court to grant her sole custody, which it did. She then filed a motion back in Vermont, asking the Vermont court to give "full faith and credit" recognition to the Virginia judge's ruling.
The Vermont court refused to honor the Virginia court ruling and when Miller refused to obey the Vermont court's order that Miller allow visitation by Jenkins, the Vermont court declared Miller in contempt.
In April 2007, Liberty Counsel, a conservative legal advocacy group representing Miller, appealed that decision to the U.S. Supreme Court, but the high court refused to take up the case. The organization then appealed to the Virginia courts, where a state appeals court ruled that the federal kidnapping law trumps both the state's "Marriage Affirmation Act" and the federal DOMA. On its appeal to the Virginia Supreme Court, Miller's attorneys also noted that Virginia voters had amended their constitution to ban recognition of same-sex relationships in 2007.
In upholding the appeals court decision, the Virginia Supreme Court agreed with Lambda's attorneys that legal procedure limits the state high court to reviewing only those issues brought up during the original appeal and that it, therefore, could not examine Liberty's arguments concerning the state constitutional amendment. The other issues, it said, were addressed in Miller's first round of appeals and therefore can not be revisited now.
Liberty Counsel attorney Matt Staver said his organization will now initiate a new lawsuit to challenge the visitation issue based on the Virginia constitutional amendment.
"We're disappointed the court side-stepped the legal conflict between the Vermont and Virginia courts," said Staver, "but we will go back down and raise the Virginia constitutional amendment in the trial court, the court of appeals, and the Supreme Court."
Meanwhile, another lesbian custody case in which Liberty Counsel is involved is winding its way through the Virginia court system, with differing results. In the latter case, a Virginia appeals court refused June 5 to grant visitation to Christine Stadter, the parent of a child she had with the biological mother, Jennifer Siperko. ACLU attorneys representing Stadter argued that she was a de facto parent of the child and that it was in the best interests of the child to have visitation with her. While the appeals court decision acknowledges the couple's relationship and mutual decision to have a child, it refers to Siperko as "the mother" and Stadter as a "non-parent" and said it could grant visitation only if Stadter could prove that the child would be harmed by being denied visitation.

Advertisement
Topics: News
Advertisement

From the Pride Source Marketplace

Go to the Marketplace
Directory default
Michigan's BMW Dealer of the year 2014, 2015, 2016 & 2017
Learn More
Directory default
Organizer of the annual Orchard Lake Fine arts Show and others
Learn More
Directory default
Serving the MSU and OU communities with financial services including checking, VISA, mortgages,…
Learn More
Advertisement