Court Rules Virginia Court Should Not Have Interfered With Vermont Case.

The Virginia Court of Appeals has ruled that Vermont has jurisdiction over a child custody/visitation dispute stemming from the dissolution of a civil union entered into in Vermont, even though one of the parents moved to Virginia and asked the Virginia legal system to take jurisdiction. The decision concurs with an earlier decision of the Vermont Supreme Court, which also held that Vermont had jurisdiction.
“Ordinarily there would be no question that Vermont would retain jurisdiction in a case like this,” said ACLU of Virginia executive director Kent Willis. “There was no reason, other than bias against Vermont’s recognition of civil unions, for the Virginia courts to try to take over this case. This ruling, while simply a matter of following accepted law, is still an important step forward for gay and lesbian rights.”
The Court of Appeals ruling is available at http://www.courts.state.va.us/wpcap.htm.

Case Background


Janet and Lisa Miller-Jenkins lived in Virginia when they traveled to Vermont to enter into a civil union in July 2000. After returning to Virginia, they decided to have a child through artificial insemination. Lisa conceived and carried the couple’s daughter. In April 2002, the couple’s daughter was born in Virginia.
Several months later, the family moved to Vermont. Lisa and Janet together raised their daughter as co-parents until they separated in the fall of 2003. Despite Janet’s objections, Lisa took the child and moved to Virginia. In November 2003, Lisa filed a petition for dissolution of the civil union in the Rutland Family Court in Vermont. In the petition, Lisa acknowledged that the child was born of the civil union, and asked the court to award custody to her and visitation for Janet. Lisa also asked the court to order Janet to pay child support.
In June 2004, the Vermont court issued a temporary custody order giving primary custody to Lisa and allowing visitation for Janet. Instead of following that order, Lisa filed a new action in Frederick County Circuit Court in Virginia. The Virginia court found that Lisa was the child’s sole parent and that Janet had no right to custody or visitation. The court cited Virginia’s “Marriage Affirmation Act,” which went into effect on July 1, 2004 and banned certain contracts between people of the same sex. In the meantime, the Vermont court held Lisa in contempt for refusing to allow Janet visitation, and later held that Janet is a legal parent of the child. Lisa appealed that decision to the Vermont Supreme Court, which upheld the lower Vermont court’s ruling:
The Virginia Court of Appeals heard arguments in the Virginia case, Miller-Jenkins v. Miller-Jenkins, in September 2005. Lawyers with the ACLU of Virginia, Lambda Legal, and Equality Virginia represented Janet Miller-Jenkins.
In today’s ruling, the Virginia Court of Appeals held that the Virginia courts should never have been involved in this case. Under federal law, once the courts in one state take jurisdiction over a child custody or visitation case, another court cannot assume jurisdiction. The law is meant to prevent parents who are unhappy with a custody ruling to move to another state to try to get a different result.
“In this case, Lisa Miller-Jenkins did not like what the Vermont courts had to say, so she tried to get a second bite at the apple in Virginia,” said Willis. “The Court of Appeals recognized that this kind of forum shopping is exactly what the federal statute is meant to prevent.”

Contacts: Kent Willis or Rebecca Glenberg, ACLU of Virginia (804) 644-8022

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