A Custody Fight Like No Other

by Philip Yabut in ,

As I mentioned in a previous post, at this point in our history same-sex divorce can be a very difficult proposition, especially in a jurisdiction that does not recognize gay marriage.  Complicating matters are potential ancillary issues that are routine (or at least as "routine" as they could be, as there are laws governing them already) in opposite-sex marriages.

Take the case of Lisa Miller and Janet Jenkins, a lesbian couple who obtained a civil union in Vermont in 2000.  The couple  had a child, born to Miller, in 2002, but their relationship ended in 2003.  After the dissolution of the civil union, a Vermont court awarded physical custody of the child to Jenkins, with visitation rights to Miller.  Miller then fled to Virginia to avoid complying with the court order.  She filed suit in Frederick County (Va.) Circuit Court, which awarded her sole custody as the birth mother based on Virginia's 2004 Marriage Affirmation Act.  Meanwhile, a Vermont court found Miller in contempt and awarded Jenkins full parental rights, which the Vermont Supreme Court upheld.  Jenkins, in turn, appealed to the Virginia Court of Appeals, which overruled that the circuit court, saying that the trial judge should not have ruled on custody at all, citing the federal Parental Kidnapping Prevention Act declaring that once custody is established in one state, a court in another state must give "full faith and credit" to the original court's ruling and thus cannot assume jurisdiction.

The important result from this sad case is that Virginia must honor another state's custody order, even if it is contrary to Virginia statutes, because federal law prevents persons unhappy with child custody orders from seeking favorable rulings in other states.  This is a measure of good news, as Virginia cannot apply its own laws restricting same-sex marriage to existing child custody orders in other states.  In the big picture, it shows that at least in the subject of child custody there is uniformity in enforcement of laws.

For more information I used for this blog on Miller v. Jenkins, click on the following links:

The American Civil Liberties Union's (ACLU) summary of Miller v. Jenkins ACLU Virginia's summary The Virginia Court of Appeals' opinion for Miller-Jenkins v. Miller-Jenkins Lambda Legal's summary of Miller v. Jenkins "The Strange, Sad Case of Miller-Jenkins v. Miller-Jenkins" (Salon.com, December 23, 2009)

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