The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose

By JOANNA GROSSMAN
Wednesday, Jun. 25, 2008

Five years after it first began, the legal dispute between former same-sex partners Lisa and Janet Miller-Jenkins over the custody of a now-six-year-old girl (known in court papers as “IMJ”) has finally come to a close. Pursuant to the Virginia Supreme Court’s recent ruling, Lisa, IMJ’s biological mother, must honor a Vermont court’s order granting Janet custody and visitation.

This case has been closely watched – and rightfully so. Perhaps better than any other, it depicts the perils and pitfalls of a national legal landscape in which states have such stark disagreements over the regulation of same-sex families. Lisa and Janet’s ordinary struggle for custody of a child they both love becomes an extraordinary one because they are both women and because the two states they inhabit, Virginia and Vermont, represent opposite extremes on the same-sex marriage spectrum.

Consensual Co-Parenting, Followed by a Break-up: The Miller-Jenkinses’ Story

Lisa and Janet Miller-Jenkins were involved in a committed same-sex relationship beginning in the late 1990s. Though they were residents of Virginia, they traveled, like hundreds of other out-of-state couples, to Vermont to enter in a civil union, not long after Vermont began to recognize a marriage-equivalent status for same-sex couples. After the ceremony, the couple returned to Virginia, where they planned to bring a child into the relationship.

Lisa was inseminated with sperm from an anonymous donor, and in April 2002, she gave birth to IMJ. Janet was a true co-parent, involved in every aspect of IMJ’s arrival. For instance, she helped select the sperm donor and was present in the delivery room. Shortly after IMJ was born, the couple moved to Vermont, where they resided for thirteen months before ending their relationship.

When IMJ was just one year old, the couple broke up. (Lisa told reporters later that she “left the homosexual lifestyle and drew closer to God.”) In September 2003, Lisa returned to Virginia with IMJ, while Janet remained in Vermont. Eventually, Lisa filed a petition to dissolve the couple’s civil union in Vermont family court, listing IMJ as the “biological or adoptive child[] of the civil union.”

The Vermont court dissolved the civil union, found both Lisa and Janet to be IMJ’s legal parents, and awarded Lisa temporary custody, and Janet in-person and telephonic visitation rights. (Since the two women became residents of Vermont, dissolving the civil union was not the battle that – as I explained in a prior column -- it has become for other non-resident same-sex couples.)

However, Lisa permitted Janet to visit with IMJ only once pursuant to this ruling, in June 2004. Shortly after that visit, Lisa filed a petition in a Virginia court seeking a ruling that would deny any parent-child relationship between Janet and IMJ. The circuit court in Virginia ruled that Lisa was IMJ’s sole legal parent, and that Janet had no parental rights.

A series of conflicting rulings then emerged from both Virginia and Vermont courts. Lisa was represented by Liberty Counsel, a public interest law firm that defends “traditional” marriage, while Janet was represented by Gay and Lesbian Advocates and Defenders (GLAD), the non-profit group that successfully litigated for same-sex marriage in Massachusetts.

Ultimately, Vermont, and Janet, won – for reasons I will explain below.

Virginia and Vermont: Opposing Extremes in the Same-Sex Marriage Battle

Virginia and Vermont have taken very different approaches to regulating same-sex families. Vermont was the first state to grant formal legal recognition to same-sex couples. Before any state permitted same-sex couples to marry, the Vermont legislature created the civil union, a marriage-equivalent for same-sex couples. The civil union law was spurred by a decision of the Vermont Supreme Court, Baker v. State, in which it held that it was a violation of the Common Benefits Clause of Vermont’s Constitution to deny same-sex couples the right to marry or enter into a substantially comparable, and legally recognized, relationship. Under current Vermont law, civil union partners are subject to precisely the same rights and obligations as spouses; only the name of their union is different.

At the same time that Vermont and, eventually, other states (Connecticut, New Hampshire, and New Jersey) were passing civil union laws, most states in the union were doing the opposite: erecting forbidding obstacles to the recognition of same-sex unions. Currently, forty-five states have adopted either a statute or constitutional amendment that bans the celebration of same-sex marriage. Nearly all of those laws either explicitly or implicitly also forbid recognition of same-sex marriages, even if validly celebrated in another state. And some of them go even further – to forbid any legal recognition of same-sex couples, whether the recognition comes in the form of marriage, an alternative status like a civil union, or even a private contract.

Virginia is one of the states in this last group, with an extremely broadly worded statute designed to prevent same-sex couples from any form of legal recognition. The Affirmation of Marriage Act provides: “A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.”

There is thus no question that Virginia would refuse to recognize a Vermont civil union (or a Massachusetts or California same-sex marriage). And, unless and until a court rules such refusal to be an unconstitutional denial of due process or equal protection, Virginia is entitled to assume that stance.

But of what relevance is all this to questions pertaining to IMJ’s custody? That question was among the ones the Virginia Supreme Court had to address.

Why Virginia, An Anti-Same-Sex-Marriage State, Was Nevertheless Willing To Enforce Vermont’s Custody Order

State laws on same-sex marriage do not necessarily control cases involving the children of same-sex couples. In many instances, same-sex parenting issues arise without reference to any legally-recognized adult relationship. A lesbian couple might jointly adopt a child, for example, in a state that does not permit them to enter into either a marriage or a civil union. The rights of each adult with respect to the child flow from the adoption order. Or, a man may make a claim to his male partner’s child based upon a co-parenting agreement – a claim that could stand or fall without regard to whether the men were legally married. But for Janet Miller-Jenkins, her claim to IMJ arises from her civil union with Lisa. Lisa was IMJ’s biological mother, and Janet did not adopt her. Her claim to IMJ thus flowed from their civil union: IMJ was a child of the union, and thus presumptively the child of both women.

The Vermont-Virginia conflict was cemented in this case by two directly contrary rulings: Vermont’s ruling that Janet was, like Lisa, IMJ’s legal parent and entitled to visitation; and Virginia’s lower-court ruling that Lisa was the sole legal parent.

Interstate custody battles are not an uncommon occurrence. Custody law and the law of parentage (that is, the law concerning who constitutes a “legal” parent to a particular child and has right or obligations associated with that status) are governed by the law in individual states. Custody disputes may thus be governed by very different standards in one state than another. However, to avoid competing and conflicting rulings, and the possibility of continuous relitigation of custody matters, Congress has adopted a series of federal laws to ensure that courts do, in fact, respect the rulings of courts from other states. The Parental Kidnapping Prevention Act (PKPA) is one such law: It aims to guide the determination of when one state must give “full faith and credit to” (that is, abide by) a child-custody determination of another state.

When Janet appealed the Virginia trial court’s ruling (in favor of Lisa as the sole legal parent of IMJ), she invoked the PKPA to argue that the Virginia court did not have jurisdiction to enter a custody order in this case. The Virginia Court of Appeals (an intermediate appellate court) agreed with Janet. It ruled that Virginia’s Affirmation of Marriage Act was pre-empted by the federal PKPA and that, under that Act, Vermont was entitled to exercise jurisdiction due to a number of factors: Vermont had jurisdiction under Vermont law; Vermont had been IMJ’s home state within six months before the custody and parentage proceeding was commenced; the child was removed from Vermont by one of the litigants, and the other litigant is still a Vermont resident.

Under the PKPA, then, according to the Virginia Court of Appeals, Vermont courts had the right to issue a binding ruling as to the custody and parentage of IMJ that Virginia courts were bound to honor.

The Final Battle: A Technical Ruling

Lisa appealed the Virginia Court of Appeals’ ruling to the Virginia Supreme Court, but her appeal was dismissed because it was not timely-filed. Meanwhile, Janet sought to “register” her Vermont custody order in a domestic relations court in Virginia – an act that would enable her to enforce the Vermont order in Virginia courts on an ongoing basis.

Lisa fought Janet’s attempt to register the order through three levels of courts before finally reaching, again, the Virginia Supreme Court. There, she argued that the Virginia Court of Appeals’ ruling with respect to the PKPA (and the validity of the Vermont custody order) was erroneous. Janet, on the other hand, argued that the Virginia Supreme Court should not now permit Lisa to argue the merits of the original case in this ancillary proceeding.

The Virginia Supreme Court, in a ruling earlier this month, ruled in favor of Janet. In so doing, it relied on a seldom-discussed doctrine called “the law of the case,” a judicially created doctrine is used to prevent re-litigation of issues by parties in the same case. Under this doctrine, as articulated by Virginia caselaw, when “there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal. Right or wrong, it is binding on both the trial court and the appellate court, and is not subject to re-examination by either. For the purpose of that case, though only for that case, the decision on the first appeal is the law.”

As applied to the Miller-Jenkins litigation, the doctrine means that Lisa cannot now challenge the Virginia Court of Appeals’ interpretation of the PKPA – which is what led to its deferral to the Vermont custody order -- because it is now the “law of the case”. She waived her opportunity to challenge the ruling by filing an untimely appeal the first time around. She cannot resurrect her claim by tagging it on to a separate proceeding – the fight over registering the custody order – in the same case.

A Positive Ruling, But an Idiosyncratic One: Why Virginia May Rule Very Differently in the Next Same-Sex Couple’s Custody Battle

While this latest – and hopefully last -- ruling is certainly good news for Janet, who can now commence enforcement of her long-ago established visitation order, it may mean that only she benefits from the ruling. A decision that is treated as “law of the case” is assumed to potentially be wrong and is thus not binding precedent in other cases.

Indeed, the Chief Justice of the Virginia Supreme Court concurred, but wrote separately to suggest that he believes the Court of Appeals ruling was incorrect on the merits – a concurrence that does not bode well for at least one party in the next interstate same-sex custody battle in Virginia.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.