Isabella Miller-Jenkins was born in April 2002 after Janet Jenkins and Lisa Miller decided to have a child together through artificial insemination. Lisa and Janet together raised their daughter as co-parents until they separated in the fall of 2003. Lisa took the child and moved to Virginia. In November 2003, Lisa filed a petition for dissolution of the civil union in the Rutland Family Court in Vermont. In the petition, Lisa acknowledged that the child was born of the civil union, and asked the court to award custody to her and visitation for Janet. Lisa also asked the court to order Janet to pay child support.
In June 2004, the Vermont court issued a temporary custody order giving primary custody to Lisa and allowing visitation for Janet. Instead of following that order, Lisa filed a new action in Frederick County Circuit Court in Virginia. The Virginia court found that Lisa was the child’s sole parent and that Janet had no right to custody or visitation. The court cited Virginia’s “Marriage Affirmation Act,” which went into effect on July 1, 2004 and banned same-sex marriages or civil unions. Janet appealed the Circuit Court’s ruling to the Virginia Court of Appeals.
In the meantime, the Vermont court held Lisa in contempt for refusing to allow Janet visitation, and later held that Janet is a legal parent of the child. Lisa appealed that decision to the Vermont Supreme Court, which upheld the lower Vermont court’s ruling.
In November 2006, the Virginia Court of Appeals held that the Virginia courts should not have ruled on Isabella’s parentage. Under federal law, once the courts in one state properly take jurisdiction over a child custody or visitation case, a court in another state cannot assume jurisdiction. The law is meant to prevent parents who are unhappy with a custody ruling from moving to another state to try to get a different result. The court held that Vermont had sole jurisdiction, and that Virginia must give full force and effect to the Vermont Court’s orders. Lisa attempted to appeal this decision to the Virginia Supreme Court, but in May 2007 the appeal was dismissed for procedural reasons.
While that appeal was pending, Janet attempted to register the Vermont order in the Virginia court. Such registration is the means by which a Virginia court may enforce orders issued by courts in other states. The Circuit Court refused to allow the order to be registered, and Janet appealed that ruling.
In April 2007, the Virginia Court of Appeals ordered the lower court to register the order, noting that its previous opinion had already directed the Virginia court to extend full faith and credit to orders of the Vermont court. Lisa appealed that ruling to the Virginia Supreme Court, which held in June 2008 that the 2006 Court of Appeals opinion was the final word on all of the relevant legal issues. That decision was based on the “law of the case” doctrine, “when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that decision during later stages of the same litigation.” Because Lisa failed to appeal the 2006 Court of Appeals decision, she could not later raise the same legal issues that were decided in that appeal.
Lisa has been repeatedly held in contempt of court in Vermont and Virginia for failing to allow court-ordered visitation. In November 2009, the Vermont court ordered that custody of Isabella be transferred to Janet on January 1, 2010.