December 1, 2006
Volume 34
Issue 48
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Friday, Aug 14, 2020



Custody ruling strengthens rights of same-sex parents
Custody ruling strengthens rights of same-sex parents
by Lisa Keen - SGN Contributing Writer

An appeals court in Virginia, where a recently enacted state law prohibits recognition of any legal relationship between same-sex couples, ruled this week that the state had to honor the ruling of a Vermont court which granted visitation to the former civil union partner of a Virginia woman.

The decision, in Janet Miller-Jenkins v. Lisa Miller-Jenkins, is the first time a court has applied a federal law aimed at stopping parental kidnapping to a dispute between a same-sex couple. The November 28 decision is also the first time a court has ruled on the validity of the federal Defense of Marriage Act (DOMA) in custody disputes between same-sex couples. And, noted Jon Davidson, legal director for Lambda Legal Defense and Education Fund, it is a case that could well end up before the U.S. Supreme Court.

The three-judge panel of the Court of Appeals for Virginia ruled that the federal Parental Kidnapping Prevention Act trumps both the state "Marriage Affirmation Act" and the federal DOMA.

The Parental Kidnapping Prevention Act of 1980 prohibits state courts from issuing custody and visitation decisions in cases which 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.

Attorneys for Lisa Miller had attempted to argue that both the federal and state laws prohibiting recognition of same-sex relationships made the parental kidnapping law moot for same-sex custody disputes. But the Virginia appeals court disagreed.

The purpose of DOMA, said the appeals court, is to "defend the institution of traditional heterosexual marriage" and to "protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions&."

"This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont," wrote the appeals court. Instead, said the court, the case was an issue of which court had jurisdiction. And because Miller initially sought a custody ruling in Vermont, it said, Vermont had jurisdiction.

Lisa Miller and Janet Jenkins met and lived in Virginia, obtained a civil union license in Vermont in 2000, and, two years later, had a baby together and moved to Vermont. Beyond the civil union, the couple did not seek to establish any legal ties, such as adoption or a parenting agreement, between Jenkins and the child and, 11 months after moving to Vermont with the baby, the couple split up. Miller, the biological mother, moved back to Virginia with the child and filed legal actions, first in Vermont and then in Virginia.

In Vermont, Miller asked the court to dissolve her civil union with Jenkins, grant her custody of the child, order Jenkins to pay child support, and provide for some visitation. But one month later, in July 2004, after Virginia enacted a new law prohibiting any recognition of same-sex relationships, Miller asked the court to grant her sole custody. When a Virginia judge granted that request, in October 2004, Miller then filed a motion back in Vermont, asking the Vermont court to give "full faith and credit" recognition to the Virginia court's ruling. The Vermont court refused.

When Miller refused to obey the Vermont court's order to grant Jenkins visitation, the Vermont court declared her to be in contempt, setting the stage for a battle between the state courts. The Vermont Supreme Court upheld its lower court ruling.

With the aid of Lambda, the ACLU, and Gay & Lesbian Advocates and Defenders, Jenkins appealed the Virginia judge's decision.

The Virginia appeals court acknowledged that the newly enacted Virginia law prohibiting any recognition of same-sex couple relationships states that, "Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable." But the court said that, even if that state law applied to the Miller case, it is pre-empted by the Parental Kidnapping law.

"The Virginia Court of Appeals," said Davidson, "applied that same requirement that is standard in disputes between different-sex couples to this dispute between same-sex parents."

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