Judges put custody fight in Vermont court’s hands
By Christina Nuckols, The Virginian-Pilot – November 28, 2006
RICHMOND — Vermont courts have the authority to grant parental rights in a custody dispute between two former lesbian partners over a 4-year-old girl now living in Virginia.
A three-judge appeals court in Virginia made that ruling on Tuesday but did not tackle the issue of whether Virginia must recognize civil unions established in other states.
Instead, the judges said Lisa Miller-Jenkins did not have the right to change her mind after she filed in a Vermont court to dissolve her civil union and agreed to give visitation rights to her former partner, Janet Miller-Jenkins.
“By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction,” according to the unanimous opinion.
Attorneys for Lisa Miller-Jenkins said they intend to appeal the decision.
Gay-rights activists welcomed the court decision as a victory for same-sex couples. They said the Virginia ruling recognizes that rights granted by one state through a civil union cannot be nullified by another.
The custody battle has been viewed as a potential test case that could result in a ruling from the U.S. Supreme Court on the enforcement of civil unions. However, the narrow scope of the Virginia ruling raises questions about whether the case presents a clean legal question for the country’s top court.
“There’s no perfect case, but in this case you have the problem that Lisa invoked the Vermont court’s jurisdiction,” said Steven Emmert, a Virginia Beach attorney who tracks appellate issues. “She even said Janet is a parent.”
The court decision relied on a federal law, the Parental Kidnapping Prevention Act, which prohibits a parent who is unhappy with a child-custody ruling in one court from seeking a second opinion in another state.
Lisa Miller-Jenkins argued that the federal law does not apply to civil unions, but the Virginia court rejected that argument.
“The law applies to all parents, gay, straight or otherwise,” said Joseph Price, one of the attorneys representing Janet.
Lisa and Janet Miller-Jenkins were living in Virginia in 2000 when they visited Vermont to join in a civil union. Lisa was artificially inseminated and gave birth to Isabella in April 2002. Later that year, all three moved to Vermont, but the two women separated in 2003 and Lisa moved back to Virginia and settled in Frederick County.
“I am thrilled … . This brings me closer to being reunited with my daughter, Isabella,” Janet Miller-Jenkins said in an e-mail from Vermont on Tuesday. Lisa Miller-Jenkins did not respond to requests for comments on Tuesday.
Price said Janet Miller-Jenkins has had no contact with Isabella for two years. He said his client is now seeking full custody of Isabella in Vermont.
Erik Stanley, an attorney for Lisa Miller-Jenkins, said she may request a ruling from all 11 judges on the Court of Appeals of Virginia. Although he called that a “likely scenario,” Stanley said his client may opt to appeal directly to the Virginia Supreme Court.
“Ultimately, we’re not going to let this rest,” he said. “We will ask the U.S. Supreme Court to hear this case if we need to. … The Vermont Courts want their state’s civil unions to have a nationwide impact. The people of Virginia have said clearly they do not want their state to recognize civil unions.”