CAV RULES THAT VERMONT COURT HAS JURISDICTION OVER DISPUTE INVOLVING CHILD OF SAME-SEX PARENTS

[Posted November 28, 2006] In a case that has recently received substantial mainstream media attention, the Court of Appeals today reverses a trial court’s judgment on jurisdictional grounds involving the federal Parental Kidnapping Prevention Act. The case is Miller-Jenkins v. Miller-Jenkins, and involves a civil union between two women, formalized under Vermont law.

Lisa and Janet Miller-Jenkins entered into a civil union under Vermont law in 2000; indeed, they apparently traveled to Vermont for that specific purpose, since there is no way they could get such recognition in Virginia, where they then resided. They agreed that they wanted to raise a child, so Lisa was artificially inseminated; the child was born in 2002, after which the whole family moved to Vermont on a permanent basis.

But a bit over a year later, the couple had a parting of ways; Lisa took the child and moved to Virginia, while Janet stayed in Vermont. Lisa filed suit in Vermont for termination of the civil union – apparently the next best thing to a divorce proceeding, although I’m no expert on Vermont law – in which she asked the court to give her custody of the child and to give Janet parental visitation rights. The Vermont court did as she asked, and entered a temporary custody and visitation order.

But Virginia’s legislators were preparing a monkey wrench to throw into the works. The General Assembly in 2004 passed the Marriage Affirmation Act, prohibiting same-sex unions and rendering void in Virginia such unions celebrated elsewhere. Lisa found out about that and, on the very day the statute took effect, she filed a petition in Virginia, asking the court to rule that she was the sole parent of the child, and that Janet had no parental rights.

Now the procedural history gets really interesting – the Vermont court finds out about the Virginia suit and enters a you-wouldn’t-dare order, telling Lisa that if she doesn’t comply with its temporary visitation order, it will have to consider a change of custody. The order maintains, understandably, that since Virginia doesn’t recognize civil unions, it can’t be counted on to adjudicate a Vermont civil union. Lisa, undeterred, pressed on.

On the pleadings, the Virginia court asserted jurisdiction under the Marriage Affirmation Act. Meanwhile, the Vermont court was busy holding Lisa in contempt for failing to permit visitation as previously ordered. On appeal, the Vermont Supreme Court ruled this past August in favor of Janet.

Today’s ruling is less about civil unions than it is about jurisdiction and the Full Faith and Credit Clause, although that probably won’t stop nonlawyer commentators from calling this a victory for same-sex marriages. (That would be an ironic turn indeed, considering that this whole thing started with the breakup of a civil union.) The overriding issue is that the federal PKPA preempts conflicting state laws, such as the Marriage Affirmation Act.

The goal of the federal statute is to prevent the deliberate kidnapping of a child by a parent who has suffered a loss in one courtroom, hoping to find a more sympathetic ear with a judge from another state. Parents can’t do that now, but that’s not the only effect of the act. For today’s purposes, the dispositive provision of the statute is the one that requires states to enforce “any custody . . . or visitation determination made . . . by a court of another state.” The Virginia trial court was thus wrong to assert jurisdiction over this case, the appellate court finds today, since Lisa herself had invoked the jurisdiction of the Vermont court by asking for her quasi-divorce.

On a matter that will interest those who handle multi-jurisdictional disputes, Lisa also quixotically asks the Virginia court to rule that the Vermont Supreme Court was wrong in its interpretation of Vermont law. Today’s response is succinct: “Lisa cites no authority, and we know of none, that permits us to rule that the supreme court of another state incorrectly interpreted its own law.” (I would love to have been at oral argument to hear the discussion of that issue.)

The ultimate ruling today is that the Virginia court is directed to extend full faith and credit to the Vermont court’s order, so Janet gets her custody and visitation victory. A couple of closing notes:

First, this case will likely have a subsequent appellate history – or at least Lisa will seek one. She can petition the full Court of Appeals for en banc rehearing, and she can ask the Supreme Court to take the case. She also can eventually petition the US Supreme Court for certiorari, since this involves a federal statute. That being said, I personally believe that the opinion handed down today is an inescapable conclusion under the current state of the law; I expect this ruling to hold up to further scrutiny.

Second, with regard to the MAA, I recall reading about a similar suggestion by John C. Calhoun in the Nineteenth Century. Calhoun championed the doctrine of nullification, which held that if the citizens of a state decided they didn’t like a given federal statute, they should be able to “nullify” it, or make it ineffective within the state’s borders. (Two guesses which issue inspired that doctrine.) By urging the primacy of the Marriage Affirmation Act over the federal statute, Lisa swam against a tide that once led to a civil war; that war validated the Supremacy Clause, holding that state law can’t trump federal law.