VA Woman Appeals Custody Ruling to VT Supreme Court

June 2, 2005

MONTPELIER, VT — Attorneys for a Virginia woman contend that state's law should be followed in a child custody battle arising from a broken civil union in Vermont.

The argument is contained in a recent filing in Vermont Supreme Court by attorneys for Lisa Miller of Virginia. It is the latest court action in a custody case that has led to a series of conflicting rulings in the civil union split of Janet Miller-Jenkins of Fair Haven and Lisa Miller of Virginia.

Attorneys for Miller had asked Rutland Family Court Judge William Cohen to give full faith and credit to the judgments reached in Virginia, which found she is the sole parent to 2-year-old Isabella, a child she bore after artificial insemination. At the time, the two women were joined in a civil union performed in Vermont.

Cohen had rejected the request. Attorneys for Miller have since appealed that ruling to the Vermont Supreme Court.

Lawyer Rena Lindevaldsen of the Florida-based legal group, Liberty Counsel, representing Miller, recently submitted a filing in the case to Vermont's highest court.

Under Vermont law, because Lisa and Janet were residents of Virginia, with the intent to continue to reside in Virginia, at the time they traveled to Vermont to enter into a civil union, and Virginia prohibited same-sex unions, they could not enter into a valid union, Lindevaldsen wrote.

Vermont has a similar rule prohibiting Vermont residents from traveling to another state to enter into a marriage that is prohibited by Vermont laws … Vermont policy is clear that Vermont does not tolerate its citizens traveling to other states to enter into a legal union considered void in Vermont, and then coming back to Vermont to try and force Vermont to recognize those unions.

Attorneys for Miller-Jenkins have until June 7 to file a response in Vermont Supreme Court. She is represented in the appeal by the Gay & Lesbian Advocates & Defenders based in Boston. Miller-Jenkins' attorney could not be reached Tuesday for comment.

The women were living in Virginia when they agreed four years ago to enter into a civil union in Vermont. The pair then returned to Virginia and decided Miller would conceive a child through artificial insemination.

Isabella was born in Virginia in April 2002 and the two women later moved to Vermont. The women then broke up, dissolving their civil union in Rutland Family Court.

Miller moved with the child back to Virginia, a state where civil unions are not recognized. She sued in Virginia for full custody and a judge there later granted her request.

Miller-Jenkins had opposed the Virginia action, arguing that a proceeding was already underway in Vermont. Her attorneys have since appealed the Virginia court's decision to the Virginia Court of Appeals. Miller-Jenkins argued that a judge in Vermont already had given her temporary visitation rights.

The case has attracted national media attention, highlighting the fate of children in relationships sanctioned in one state but not in others.

In his decision in December rejecting a bid to grant full-faith and credit to the Virginia ruling, Cohen cited the federal Parental Kidnapping Prevention Act, which was designed to eliminate jurisdiction battles between states with conflicting provisions in child custody disputes.

Without the national standards for enforcing custody rulings, noncustodial parents still had reason to snatch their children and petition the courts of any number of haven states for sole custody, the decision read.

Cohen wrote that once a state takes jurisdiction in a case, no other state may take jurisdiction over that custody dispute. And, he wrote, because Vermont first had jurisdiction in this case, he is not bound by any decision reached in a Virginia court.

Miller's attorneys argue in the recent filing that the case should be decided in Virginia, in part, because she was artificially inseminated in Virginia, gave birth to Isabella in Virginia and continued to live in Virginia until four months after Isabella's birth.

Miller's attorney also disagreed with Cohen's take on the federal Parental Kidnapping Prevention Act.

… even if the PKPA precludes a court from taking jurisdiction of a parentage action after another court had already issued a custody or visitation determination, the later enacted federal Defense of Marriage Act permit Virginia to refuse to recognize any rights created by virtue of the civil union, the filing stated.