Richmond , VA -- The Virginia Supreme Court today upheld the Court of Appeals decision recognizing that Vermont, not Virginia, has jurisdiction in a long-running custody dispute over a child born during the Vermont civil union of two women. The Lambda Legal Defense Fund, the ACLU of Virginia, and Equality Virginia represented Janet Miller-Jenkins, the non-biological mother, who has asked Virginia to honor a Vermont court’s ruling, which awarded her visitation rights after the civil union was dissolved.
“We are very pleased with the Supreme Court’s decision,” said ACLU of Virginia Executive Director Kent Willis. “It’s taken far too long, but we hope this will be the last stop in Janet’s pursuit to confirm her visitation rights.”
“The Virginia courts are simply following the accepted law and recognizing the custody and visitation decisions of another state, as it would expect other states to recognize its decisions,” said ACLU of Virginia Legal Director Rebecca Glenberg. “Lisa Miller-Jenkins does not get to cherry pick her courts to suit her liking. Simply because she did not like the Vermont court’s decision, does not allow her to try to get a more favorable ruling from another state.”
Lisa Miller-Jenkins, who is the child’s biological mother, initially filed a case in a Vermont court, which ruled that Lisa’s former partner, Janet Miller-Jenkins, should have visitation with the child. Janet had acted as the child’s parent since her birth. Lisa refused to comply with that order, and instead filed a new action in a Virginia court.
The Virginia Court of Appeals and the Vermont Supreme Court have issued rulings holding that Vermont has sole jurisdiction over the matter and that Virginia must honor the Vermont court’s rulings. Under federal law, a state court may not interfere with an ongoing custody proceeding in another state.
A copy of the Virginia Supreme Court’s decision can be found at http://www.acluva.org/docket/pleadings/miller-jenkins_vasctopinion.pdf.

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. Janet appealed the Circuit Court’s ruling to the Virginia Court of Appeals.
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.
In November 2006, the Virginia Court of Appeals held that the Virginia courts should never have been involved in the 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 from moving to another state to try to get a different result. The court held that Vermont had sole jurisdiction, and that Virginia must give full force and effect to the Vermont Court’s orders. Lisa attempted to appeal this decision to the Virginia Supreme Court, but the appeal was dismissed because she failed to follow the proper procedures.
While that appeal was pending, Janet attempted to register the Vermont order in the Virginia court. Such registration is the means by which a Virginia court may enforce orders issued by courts in other states. The Circuit Court refused to allow the order to be registered, and Janet appealed that ruling.
In April 2007, the Virginia Court of appeals ordered the Circuit Court to register the order. The court noted that in its previous opinion, it had already directed the Virginia court to extend full faith and credit to orders of the Vermont court. Lisa appealed that ruling to the Virginia Supreme Court.
Today the Virginia Supreme Court declined to overrule a 2006 Court of Appeals ruling that Vermont had custody over the case under the federal Parental Kidnapping Prevention Act.   Lisa had failed to file a timely appeal from that ruling.  Instead, she appealed from a 2007 Court of Appeals decision, which – relying entirely on the earlier opinion – held that Virginia courts had to register the Vermont order.  But the court held that the 2006 opinion was the final word on all of the relevant legal issues.
The court noted that under the “law of the case” doctrine, “when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that decision during later stages of the ‘same litigation.’”  Because Lisa failed to appeal the 2006 Court of Appeals decision, she could not later raise the identical legal issues that were decided in that appeal.

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

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