By Ross Sneyd, Associated Press Writer | August 4, 2006
MONTPELIER, Vt. (AP) -- The Vermont Supreme Court said Friday that Vermont courts, and not those in Virginia, have exclusive jurisdiction over an emotional case between two women arguing about custody over a child they had while they were in a lesbian relationship.
The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's anti-gay marriage laws controlled the case.
Vermont Justice John Dooley wrote, though, that it's Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that means Vermont family law governs their 2003 separation and subsequent child custody disagreement.
A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court.
"It's a classic conflict between two states over same-sex unions," said Mathew Staver, founder and chairman of Liberty Counsel, which is representing one of the women in the dispute. "The real question there is whether or not a state can have its own policy that does not accept same-sex unions or whether they have to accept the union of another state."
But an attorney who represents same-sex marriage supporters said that might not necessarily be so. Jennifer Levi of Gay & Lesbian Advocates & Defenders said the Virginia Court of Appeals has stayed its ruling pending a decision by Vermont's courts, which now say the women were legally joined and were both legal parents.
"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," Levi said. "So I think it's really premature to address where this will be resolved. I'm very optimistic that the Virgnia Court of Appeals will rule consistent with the Vermont Supreme Court."
Vermont became the first state in the nation to recognize same-sex couples' relationships in 2000, enacting a civil union law that mimics marriage. Only one other state -- Connecticut -- has such a law and whether such relationships would be recognized in other states has been a matter of litigation. Massachusetts is the only state that permits same-sex marriage.
"This is a straightforward interstate jurisdictional dispute over custody, and the governing law fully supports the Vermont court's decision to exercise jurisdiction and refuse to follow the conflicting Virginia visitation order," Dooley wrote.
The case involves Lisa Miller-Jenkins and Janet Miller-Jenkins, who were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination in 2001 while the couple was together and a child, Isabella, was born the following April. They eventually moved full-time to Vermont in August 2002.
In the fall of 2003, the women separated and Lisa Miller-Jenkins moved back to Virginia. She filed for a dissolution of their civil union, akin to a divorce, in November. An initial order was issued the following June regarding custody and visitation. A month later Lisa Miller-Jenkins turned to Virginia courts seeking full custody. During that time she also said she had become a Christian and she renounced homosexuality.
The Vermont Supreme Court ruled in favor of Janet Miller-Jenkins on three key issues: the visitation dispute, the Vermont court's refusal to abide by the Virginia court's orders, and a contempt ordered issued by the Vermont Family Court against Lisa Miller-Jenkins for failing to abide by its visitation order.
Staver represented Lisa Miller-Jenkins in the Vermont appeal and Levi represented Janet Miller-Jenkins.
The Vermont court wrote that the dispute revolved around a federal law and a uniform state law that's on the books in some form in every state. The federal law is the Parental Kidnapping Protection Act and the state statute is the Uniform Child Custody Jurisdiction Act.
Dooley said those laws gave Vermont jurisdiction because state courts had determined that the women's relationship was legally valid and they were both legally the parents of the child. He rejected Staver's argument that the federal Defense of Marriage Act might supersede either of those laws.
Staver said Dooley's reasoning is flawed because states such as Virginia's do not sanction same-sex relationships, an argument that Dooley also rejected. Levi said it was solid reasoning because the federal and state laws Dooley referenced in his decision were designed to avoid the kind of disputes between states raging between Vermont and Virginia.