pageok
pageok
pageok
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 ยง 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.

Related Posts (on one page):

  1. Virginia Appellate Court Sides With Vermont Court in Dispute Over Lesbian's Parental Rights:
  2. Conflict Between Vermont Courts and Virginia Courts in Dispute Over Lesbian's Parental Rights:
Per Son:
My heterosexual marriage is just crumbling and losing its meaning. Shucks.
11.29.2006 2:52pm
Crunchy Frog:
Welcome to the 21st Century.
11.29.2006 3:01pm
CynicPerry:

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.


"assertions and prayers"... is that common language? for some reason, "prayers" really, really implies religion to me...
11.29.2006 3:02pm
Sasha Volokh (mail) (www):
From the start, "pray" has just meant "ask," though it's become most often used in its religious sense. You see "prayer" used occasionally in legal language to just mean whatever relief was requested.
11.29.2006 3:04pm
Steve:
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.

This seems like exactly the right result, in terms of respecting both the Full Faith and Credit Clause as well as the right of individual states to enforce a public policy exception.
11.29.2006 3:05pm
David Krinsky (mail):
CynicPerry:

"Prayer" is also a legal term meaning the specific relief that someone is asking from the court. It has nothing to do with religion in this context.

D.
11.29.2006 3:06pm
kfh (mail):
As a family law practitioner, albeit in Colorado, I don't know how the Virginia court could have reached any other decision. Based on the facts as reported under the Uniform Child Custody Jurisdiction and Enforcement Act (I assume Virginia has adopted a version) most of the factors for determining jurisdiction, residency, first court action, convenience of forum, etc. seem to tilt in favor of Vermont. I am curious as well whether under Vermont law the child custody determination is considered an intrinsic claim/remedy in the dissolution of the civil union as it is in divorce actions. This would create the Catch 22 where a parent wishing to dissolve a civil union (so as to sever the property/inheritance/etc. rights created thereby)might have to submit to Vermont's jurisdiction over custody issues because their new home state doesn't recognize civil unions or a cause of action to dissolve them.
11.29.2006 3:22pm
Rich B. (mail):

This seems like exactly the right result, in terms of respecting both the Full Faith and Credit Clause as well as the right of individual states to enforce a public policy exception.


This is exactly right. I don't see how the civil union issue comes up at all. If the Vermont court grants visitation rights to a grandparent, an uncle, a close friend, or whatever, other courts should respect that decision. The fact that the rights were given to a former lesbian partner is just a red herring here.
11.29.2006 4:04pm
Houston Lawyer:
kfh raises an interesting point. If the woman had moved to Virginia prior to terminating the civil union and had petitioned the Virginia court to terminate the civil union, the result could have been quite different. I don't know whether Virginia courts have jurisdiction to terminate civil unions that Virginia courts don't recognize.

This issue must have been litigated before now and certainly will be with regard to same sex marriages.
11.29.2006 4:16pm
PatHMV (mail) (www):
kfh,

Suppose Lisa had just upped and moved to Virginia. Is there any real reason she would need to formally dissolve the civil union? Let's assume for this purpose that the couple had no immovable property located in Vermont.

I think that under the PKPA Vermont would still have jurisdiction, as the child had recently lived in the state, but then it would sort of be a race to the courthouse. If Lisa filed for custody in Virginia before Janet filed for custody in Vermont, the PPK would seem to suggest that Virginia would then be the proper venue.

To really complicate matters, suppose that after getting hitched in Vermont, Lisa and Janet and baby ISJ all moved to Texas for a couple of years, and then to Virginia, so that neither Vermont nor any other state recognizing civil unions would have proper jurisdiction under the PKPA.

Personally, I don't see that child custody should be seen as so inseperably part of or incidental to the dissolution of a marriage or civil union. Unmarried heterosexuals occasionally have custody disputes, too, and the custody decision does not hinge on their marital status. One could, I think, hold that Virginia does not recognize the civil union, but does recognize that Janet had formally adopted ISJ, entirely separate from the issue of whether the civil union exists.
11.29.2006 5:07pm
PDXLawyer (mail):
The issue raised by Houston and kfh would also apply to common law marriages (parties who hold themselves out as husband and wife without ever having a wedding ceremony or license). Some states recognize them and some don't. My understanding is that courts won't "divorce" people who aren't married by their lights. You can get the same effect, though, by a suit to partition property and/or dissolve a partnership (a partnership may have a non-business purpose, like holding recreational property).

As long as Lisa stayed in Virginia, she had no *need* to terminate the civil union, because as far as Virginia law was concerned it didn't exist. She effectively got "divorced" just by moving. If she later subjected herself to the jurisdiction of a state that recognized the Vermont union she could go to that state to dissolve it.

As to this case, there are a number of reasons why Lisa loses. In addition to those mentioned, Lisa also has a problem of judicial estoppel - *she* (not the other side) went to the Vermont court. I can't practice family law because so many of the clients act like nuts, taking wildly inconsistent positions over time. Lisa's a good example.
11.29.2006 5:28pm
kfh (mail):
I agree that had Lisa managed to stay in Virginia long enough for Virginia to acquire jurisdiction under the PKPA (generally six months) without Janet initiating an action in Vermont (a big if) she could then have initiated a custody action under Virginia law ignoring the civil union aspects and successfully availed herself of Virginia law's apparent antipathy to the claims of same sex partner/parents.

However, she still would remain tied to her partner in the civil union under VT. law. Clearly that would implicate property in VT. There remain lots of other interesting questions. Can Janet marry or enter into another civil union without dissolving her union with Lisa. Can Lisa? If Lisa died in Virginia, VA law would apparently preclude Janet from claiming from her estate. However, if Janet died in VT (and the civil union was never dissolved) Lisa should be able to assert her spousal rights in Janet's estate.

If a VT court issued a support order in favor of Janet or divided a retirement account via Qualified Domestic Relations Order could it be enforced? Probably not in Virginia but what about other states. What if the employer/account administrator did business in VT and was subject to service of process and the jurisdiction of VT courts?
11.29.2006 6:09pm
kfh (mail):
I agree that had Lisa managed to stay in Virginia long enough for Virginia to acquire jurisdiction under the PKPA (generally six months) without Janet initiating an action in Vermont (a big if) she could then have initiated a custody action under Virginia law ignoring the civil union aspects and successfully availed herself of Virginia law's apparent antipathy to the claims of same sex partner/parents.

However, she still would remain tied to her partner in the civil union under VT. law. Clearly that would implicate property in VT. There remain lots of other interesting questions. Can Janet marry or enter into another civil union without dissolving her union with Lisa. Can Lisa? If Lisa died in Virginia, VA law would apparently preclude Janet from claiming from her estate. However, if Janet died in VT (and the civil union was never dissolved) Lisa should be able to assert her spousal rights in Janet's estate.

If a VT court issued a support order in favor of Janet or divided a retirement account via Qualified Domestic Relations Order could it be enforced? Probably not in Virginia but what about other states. What if the employer/account administrator did business in VT and was subject to service of process and the jurisdiction of VT courts?
11.29.2006 6:09pm
kfh (mail):
Sorry about the double post. The more I think about this the more questions pop up. Since I don't practice in a state the recognizes civil unions I'm just throwing them out. Can the child inherit from Janet's estate (as a matter of right as opposed to a devise by will) Can Lisa get child support from Janet? What happens if jurisdiction eventually switches to Virginia for purposes of modification of the original VT order. (This can happen if Lisa and the child legally remain in Virginia and there is no ongoing litigation in VT.)

Here in Colorado we just passed an anti-gay marriage referendum and a civil union alternative also failed so I don't have to deal with these questions directly, at least until a client from VT comes through the door.
11.29.2006 6:23pm
PatHMV (mail) (www):
kfh,

I agree, all interesting and very practical concerns. I don't practice family law myself (I fear I would be too soft-hearted to collect fees from the side I would generally wind up representing), but I've always been interested in the subject as it is one of the areas of law that most directly affects individuals.

For purposes of the children, though, I think the question is easier to resolve, based on traditional principles of parenthood, adoption, and child custody. I would imagine the safest course of action for any homosexual couple in Vermont wishing to have kids would be for both parties to legally adopt the child. I assume that's possible, yes? What happens in a regular adoption to a married couple, don't they both become the parents? Vermont could pass a "putative motherhood" statute which says that a child born to a lesbian couple during a civil union shall be considered the child of both parties for all purposes, and that this statute is for the benefit of the child and is not a "benefit of the civil union" (to try to force Virginia and other states to recognize at least that portion of the law even while they refuse to recognize civil unions).

In probably more-typical adoption cases, simply list both parties on the adoption papers as parents.

All the property law questions are very interesting. As I recall, the biggest retirement program of all, Social Security, is prohibited from recognizing civil unions.
11.29.2006 7:19pm
eric (mail):
Well at least this prove that homosexual women have just as messy of custody battles as heteros.

Seriously though, how will the courts handle this situation when the women are not in a civil union but live together in the state? Will they treat the non-conceiving partner like they would treat a live in boyfriend that was not the biological father? This could get confusing.

If they adopted, I bet some family court judge would be confused about who to give custody to. If this gives away my view of the family court system, oh well.
11.29.2006 8:51pm
raj (mail):
Houston Lawyer 11.29.2006 4:16pm

kfh raises an interesting point. If the woman had moved to Virginia prior to terminating the civil union and had petitioned the Virginia court to terminate the civil union, the result could have been quite different.

It's probable that the Virginia courts would have determined that they were unable to terminated the civil union, because the commonwealth of Virginia does not have a parallel institution. There have been similar results in other states. If the VA courts reached that conclusion, the VA woman would have had to go to Vermont to dissolve the CU.
11.29.2006 9:04pm
lucia (mail) (www):
The Iowa Courts terminated a Vermont Civil Union:
http://www.actwin.com/eatonohio/gay/sciowa.html.
11.29.2006 11:27pm
lucia (mail) (www):
Turns out Oklahoma also granted a gay divorce: 365 gay.com on Nov. 17 but there is a possibility the divorce decree could be set aside.

A gay couple has filed for divorce in Rhode Island.

I guess we'll see if states agree with the Iowa Supreme Court and permit dissolutions even when they don't permit marriage, or whether they make couples go back to Vermont.
11.29.2006 11:51pm
Fredrik Nyman (mail):
I'm wondering about the contempt situation. Generally, if one court orders you to do A, and another court orders you not to do A, is there anything you can do not to be held in contempt?

And for the instant case, does it matter how the legal issues resolve? That is, would/could Vermont still hold Lisa in contempt even if the Virginia court had ruled that Vermont lacks jurisdiction over the child visitation dispute?
11.30.2006 12:27am
lucia (mail) (www):
Fredrik: This case has been taking a long time. Vermont not only could and would hold Lisa in contempt, they did so. (EV blogged about this in August 2006, but the case seems to have begun sometime around 2003. I think I first heard about it in 2004.)
11.30.2006 12:38am
raj (mail):
Lucia 11.29.2006 11:27pm

The Iowa Courts terminated a Vermont Civil Union...

This is true, but the termination by the trial judge was not affirmed (or reversed) on appeal, so its precidential value is questionable. The case you cited was an attempt by third parties to force the trial judge to dismiss the case, and the courts held that the third parties did not have standing.

BTW, the issue has been presented to Texas courts, and they apparently will not dissolve VT civil unions. It seems to be a strange case, but it is referenced at http://www.tgcrossroads.org/news/archive.asp?aid=658
11.30.2006 10:40am
lucia (mail) (www):
Raj: I agree about the non-precendential aspect.

In anycase, the Iowa case is weird in a variety of ways. Including that when first signed, the first judge didn't realize it was a same-sex CU and some error was made (I think). Then it was brought to his attention, he said "Oh. Well, that's ok. I'll still terminate the union and terminated it.

Though, one presumes the Iowa Supreme would continue to tell parties trying to get future terminations reversed that they they also don't have standing to interfere in this decision. As a practical matter, if the courts terminate them and consistently decree that others have no standing to reverse the terminations, then Iowa is permitting same sex couples to terminate their CU.
11.30.2006 3:42pm
subpatre (mail):
Virginia will not terminate civil unions. The Constitutional Amendment just passed states
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals ... Nor ... which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
"
For Virginia's legal purposes, unions don't exist. I expect our courts to enforce other contracts and compacts, including child support and custody.
12.1.2006 12:29am