Vermont Calls and Raises Virginia

It's DOMA v. civil unions in the battle of the V states. Vermont's highest court ruled unanimously that its state has sole arbiter of a custody battle one lesbian partner tried to take into Virginia courts.

We covered the original last year in part one, two and three.

In some ways it is a standard custody fight, with one parent sneaking to a state with more favorable laws. The fact that the two V states are on opposite ends of gay-rights and marriage-rights makes this unusual.

The basics are that Lisa Miller-Jenkins and Janet Miller-Jenkins used to live in Virginia. In 2000, they came to Vermont for a civil union. Lisa had an artificially insemination-conceived daughter a year later. In August, 2002, they moved full-time to Vermont. A year later they separated and Lisa moved back to Virginia with daughter Isabella. There, she filed for dissolution of the union.

When the union dissolved the next June, Lisa wait a month before turning to Virginia courts for full custody of her biological daughter.

Nasty, eh?

In the opinion for the Vermont Supreme Court, Justice John Dooley wrote that Vermont is in charge. The union and separation were totally under Vermont law and control. So, the custody agreement must be too. His strong opinion included:

The family court properly assumed jurisdiction of the action to dissolve the civil union between Lisa and Janet. The civil union was not void. The court properly found that it had jurisdiction to issue a temporary order providing Janet visitation with IMJ, and it was not required to recognize and enforce a conflicting decision of the Virginia court. Finally, the record supports the family court’s decision that Lisa is in contempt of court for willfully violating the temporary visitation order.

The strongly anti-gay Liberty Counsel founder Matthew Staver predicts this must end up with the U.S. Supreme Court. In contrast, GLAD's Jennifer Levi thinks this is a clear victory and that Virginia courts are likely to get with the program. She notes that the Virginia Court of Appeals stayed its ruling pending the Vermont decision. "Once that determination is made, that's where every court and federal law couldn't be clearer about the fact that Vermont has jurisdiction to resolve questions of custody and visitation of that case. So I think it's really premature to address where this will be resolved. I'm very optimistic that the Virginia Court of Appeals will rule consistent with the Vermont Supreme Court."

Representing Lisa, Staver claimed Virginia's DOMA did not recognize same-sex unions and therefore would appeal Vermont's ruling.

GLAD describes the next steps as, "(S)eeking final orders regarding custody and visitation from the Vermont Family Court; awaiting a Virginia appellate decision on whether Virginia ever properly exercised jurisdiction to enter this dispute while Vermont had jurisdiction; and seeking enforcement of Janet’s visitation rights in Virginia where (their daughter) currents lives."

Our money's on Vermont and Janet.

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Tags: massmarrier, civil union, child custody, Virginia, Vermont