 |
Virginia
Court Cedes
Lesbian
Custody Battle To Vermont
by
365Gay.com November 28, 2006
|
| |
|
Richmond, Virginia -- The
twists and turns of a nasty custody battle between two lesbians in two states
over a four year old girl took another twist Tuesday with the Virginia Court of
Appeals ruling that the state of Vermont has jurisdiction in the case.
In a narrow ruling that carefully avoided the issue of same-sex partner rights
and civil unions -- Virginia has a constitutional amendment barring gay unions
-- the court addressed only the issue of Constitutional law called full faith
and credit.
"This case does not place before us the question whether Virginia recognizes the
civil union entered into by the parties in Vermont," the ruling said.
"The only question before us is whether ... Virginia can deny full faith and
credit to the orders of the Vermont court. It cannot."
The case involved a little girl named Isabelle who was conceived through
artificial insemination to Lisa Miller-Jenkins. At the time she was in a
relationship with Janet Miller-Jenkins which had been formalized by a civil
union in Vermont where they resided.
When the relationship between the two women soured and they split up, a judge in
Vermont gave Janet Miller-Jenkins temporary visitation rights with the child.
Lisa Miller-Jenkins fled with her daughter to Virginia which has some of the
most anti-gay legislation in the country. She then went to court in that
state seeking sole custody of the child.
Janet Miller-Jenkins fought the application on the grounds that the case was
already before the court in Vermont.
But, Fredrick Virginia judge John R. Prosser ruled that since the mother resided
in Virginia, a Virginia court would hear the case. Subsequently Prosser
ruled that Lisa Miller-Jenkins was the sole parent and that Janet Miller-Jenkins
is nothing more a friend to the child.
Janet Miller-Jenkins appealed with the help of Lambda Legal.
Lambda attorney Greg Nevins argued before the Virginia Court of Appeal that
Prosser erred in law. Nevins told the court that the case had already been
dealt with by a Vermont family court prior to Lisa Miller-Jenkins' departure
with the child to Virginia.
Meanwhile, after Lisa Miller-Jenkins' flight out of Vermont, a Family Court
judge in Rutland, Vermont found Lisa Miller-Jenkins in contempt for moving to
Virginia and disobeying a court order involving the child's joint custody.
And, last November a Vermont judge ruled that under the state's civil unions
law, Janet Miller-Jenkins must be regarded as a co-parent.
In August the Vermont Supreme Court unanimously concluded that under
well-established laws designed to protect children and families, the Vermont
Family Court properly ordered visitation between Janet and her daughter.
Tuesday's ruling by the Virginia Court of Appeals sends the case sent back to
the lower court in Frederick County.
"We hold that the trial court erred in failing to recognize that the PKPA
[Parental Kidnapping Prevention Act] barred its exercise of jurisdiction," the
ruling said. "Accordingly we vacate the orders of the trial court and
remand this case with instruction to grant full faith and credit to the custody
and visitation orders of the Vermont court."
"This has been a long road for Janet and now she's that much closer to seeing
her daughter again," said Nevins of the ruling.
"The Virginia Court of Appeals rightly recognized that federal law protects
parents against the very thing Lisa Miller did -- parents cannot shop around
looking for a court to give them sole custody."
An attorney for Lisa Miller-Jenkins said his client has not decided whether to
appeal to the Virginia Supreme Court but implied it is likely. If that
becomes the case the battle will, legal experts predict, end up in the US
Supreme Court.
|
