Conflict Between Vermont Courts and Virginia Courts in Dispute Over Lesbian's Parental Rights:

The Vermont Supreme Court just issued its opinion in Miller-Jenkins v. Miller-Jenkins; here's a brief summary of the facts:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the "biological or adoptive child[]of the civil union." Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ....

Lisa eventually started denying Janet her visitation and contact rights, and the Virginia court in which Lisa filed an action to establish IMJ's parentage backed her up, holding that "any claims of Janet to parental status were 'based on rights under Vermont's civil union laws that are null and void under Va. Code § 20-45.3,'" that Lisa was the "sole biological and natural parent," and that Janet had no "claims of parentage or visitation rights over" IMJ. (That order is being appealed in Virginia.) The Vermont court, on the other hand, found Lisa guilty of contempt of court for violating the Vermont order, and refused to adhere to the Virginia order (which was issued after the initial Vermont order).

I'm not a family law maven, but here's my sense of the matter.

First, despite how Lisa's lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren't married. The relevant federal statute, the Parental Kindapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to "enforce according to its terms" out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) ... (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), "A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination").

So even if Janet and Lisa weren't in a civil union, but were merely living together and had raised a child together, the initial Vermont order would have been valid, and the subsequent Virginia order invalid — that's why I say that this case is not primarily about marriage or civil unions. The Vermont Supreme Court did rely in part on the civil union, in deciding in the first instance that Janet (who isn't IMJ's biological parent) was entitled to parental rights. But while the court noted this "first and foremost," it also pointed to many other factors that would have been present even had this situation arisen without a civil union: "It was the expectation and intent of both Lisa and Janet that Janet would be IMJ's parent. Janet participated in the decision that Lisa would be artificially inseminated to bear a child and participated actively in the prenatal care and birth. Both Lisa and Janet treated Janet as IMJ's parent during the time they resided together, and Lisa identified Janet as a parent of IMJ in the dissolution petition. Finally, there is no other claimant to the status of parent, and, as a result, a negative decision would leave IMJ with only one parent." "Because so many factors are present in this case that allow us to hold that the non-biologically-related partner is the child's parent, we need not address which factors may be dispositive on the issue in a closer case."

Thus, a Vermont court decided — based partly on Lisa's and Janet's Vermont civil union, but also on other factors that would cut in favor of this decision in case — that Janet was entitled to parental rights. At that point, the federal statute kicked in, and the Virginia courts were not allowed to revisit the Vermont decision, not because Lisa and Janet had a civil union, but because the Vermont decision took precedence and would have took precedence even Lisa and Janet had been an unmarried opposite-sex couple Lisa and John.

One last issue: What about the Defense of Marriage Act"? For the reasons I mentioned, the Act doesn't apply, and thus doesn't trump the PKPA.

The Act provides that states (here, Virginia) need not follow "any public act, record, or judicial proceeding of any other State [here, Vermont], territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." Virginia thus has no obligation to take into account Lisa's and Janet's civil union. But the Vermont court's custody decision didn't involve a right or claim legally arising from the civil union; it involved a right or claim arising from a child custody decision — a decision that, as I said, could have been rendered even for a couple who had never been either married or in a civil union.

(Had the Vermont court concluded that the decision would have been otherwise absent the civil union, the matter might have been different, but the court strongly suggested that the other factors would have yielded the same result. Also, the child did "aris[e] from such [civil union] relationship," in the sense that it was born into the civil union, and Lisa and Janet might not have agreed to have a child were it not for the civil union — but the right or claim doesn't arise from a relationship, just like, say, two married people's purchase of a house as tenants in common wouldn't be "a right or claim arising" from the marriage, and would remain legally valid even if the marriage were found to be invalid.)

The Vermont Supreme Court held only (and clearly correctly) that DOMA doesn't require Vermont to honor the Virginia custody decision, and given the procedural posture of the case didn't have to "reach the broader question of whether DOMA, and not the PKPA" would govern Virginia's decision whether to honor the Vermont custody decision. But if my analysis is right, then it shows that under federal law Virginia must indeed honor the custody decision that flows from Lisa's and Janet's parenting of the child, though Virginia need not honor the civil union status.

Virginia Appellate Court Sides With Vermont Court in Dispute Over Lesbian's Parental Rights:

The Virginia Court of Appeals issued an opinion yesterday in Miller-Jenkins v. Miller-Jenkins, the case on which the Vermont Supreme Court ruled in August. Here's a brief summary of the facts from the Vermont Supreme Court opinion:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

Then:

(1) "On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the 'biological or adoptive child[]of the civil union.' Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ...."

(2) After Lisa eventually started denying Janet her visitation and contact rights, a Virginia court in which Lisa filed an action to establish IMJ's parentage backed her up, holding that "any claims of Janet to parental status were 'based on rights under Vermont's civil union laws that are null and void under Va. Code § 20-45.3,'" that Lisa was the "sole biological and natural parent," and that Janet had no "claims of parentage or visitation rights over" IMJ.

(3) The Vermont court, on the other hand, found Lisa guilty of contempt of court for violating the Vermont order, and refused to adhere to the Virginia order (which was issued after the initial Vermont order).

(4) The Vermont Supreme Court upheld the Vermont court's ruling.

Now,

(5) The Virginia Court of Appeals sided with the Vermont courts, and concluded that "the PKPA [Parental Kidnapping Prevention Act] prevented [the Virginia court's] exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court." It also agreed with the Vermont Supreme Court that the Defense of Marriage Act doesn't preclude the Vermont order:

DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ's custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.