Virginia Court of Appeals Rejects Latest Effort to Avoid Enforcement of Vermont Custody Orders in Virginia

Affiliate: ACLU of Virginia
June 23, 2009 12:00 am

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Circuit Court Correctly Threw Out Biological Mother’s Lawsuit in Same-Sex Custody Dispute, Says Appellate Court


Richmond, VA — In a long running custody and visitation dispute, the Virginia Court of Appeals today thwarted Lisa Miller’s latest attempt to avoid complying with Vermont orders requiring her to grant visitation to her former partner, Janet Jenkins. The Lambda Legal Defense Fund and the ACLU of Virginia represented Janet Jenkins, the non-biological mother, who asked Virginia to honor a Vermont court’s ruling, which awarded her visitation rights after the civil union was dissolved.

Two previous opinions from the Court of Appeals and one from the Virginia Supreme Court recognized that Vermont, not Virginia, has jurisdiction over the dispute, and that Virginia must enforce the Vermont court’s orders. Nonetheless, last summer, Lisa Miller filed a new lawsuit in Frederick County Circuit Court, asking the judge to prohibit any registration or enforcement of Vermont’s orders. The Circuit Court dismissed the case. Today, the Court of Appeals affirmed that decision, noting that “Miller, once again, seeks to sidestep her prior submission to the courts of Vermont and the decisions already rendered there and in this Commonwealth regarding the custody of her child.”

“We are very pleased with the Court of Appeals decision,” said ACLU of Virginia Executive Director Kent Willis. “Clearly, the court does not appreciate Lisa’s repeated procedural ploys to avoid its previous rulings.”

Lisa Miller initially filed a case in a Vermont court, which ruled that Lisa’s former partner, Janet Jenkins, should have visitation with the child. Janet had acted as the child’s parent since her birth. Lisa refused to comply with that order, and instead filed a new action in a Virginia court.

The Virginia Court of Appeals and the Vermont Supreme Court have issued rulings holding that Vermont has sole jurisdiction over the matter and that Virginia must honor the Vermont court’s rulings. Under federal law, a state court may not interfere with an ongoing custody proceeding in another state.

Jenkins is being represented by Gregory Nevins from the Lambda Legal Defense and Education Fund in Atlanta, and Rebecca K. Glenberg, Legal Director of the ACLU of Virginia. For complete explanation of the case’s history, see Case Background below.

Case Background

Janet Jenkins and Lisa Miller lived in Virginia when they traveled to Vermont to enter into a civil union in July 2000. After returning to Virginia, they decided to have a child through artificial insemination. Miller conceived and carried the couple’s daughter. In April 2002, the couple’s daughter was born in Virginia.

Several months later, the family moved to Vermont. Miller and Jenkins together raised their daughter as co-parents until they separated in the fall of 2003. Despite Jenkins’s objections, Miller took the child and moved to Virginia. In November 2003, Miller filed a petition for dissolution of the civil union in the Rutland Family Court in Vermont. In the petition, Miller acknowledged that the child was born of the civil union, and asked the court to award custody to her and visitation for Jenkins. Miller also asked the court to order Jenkins to pay child support.

In June 2004, the Vermont court issued a temporary custody order giving primary custody to Miller and allowing visitation for Jenkins. Instead of following that order, Miller filed a new action in Frederick County Circuit Court in Virginia. The Virginia court found that Miller was the child’s sole parent and that Jenkins 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 certain contracts between people of the same sex. Jenkins appealed the Circuit Court’s ruling to the Virginia Court of Appeals.

In the meantime, the Vermont court held Miller in contempt for refusing to allow Jenkins visitation, and later held that Jenkins is a legal parent of the child. Miller 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 never have been involved in the case. Under federal law, once the courts in one state take jurisdiction over a child custody or visitation case, another court 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. Miller attempted to appeal this decision to the Virginia Supreme Court, but in May 2007 the appeal was dismissed because she failed to follow the proper procedures.

While that appeal was pending, Jenkins 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 Jenkins appealed that ruling.

In April 2007, the Virginia Court of Appeals ordered the Circuit Court to register the order. The court noted that in its previous opinion, it had already directed the Virginia court to extend full faith and credit to orders of the Vermont court. Miller appealed that ruling to the Virginia Supreme Court, which held in June 2008 that the 2006 opinion was the final word on all of the relevant legal issues.

The Virginia Supreme Court noted that under 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 Miller failed to appeal the 2006 Court of Appeals decision, she could not later raise the identical legal issues that were decided in that appeal.

In July 2008, Miller filed a new lawsuit in Frederick County Circuit Court, asking the judge to prohibit any registration or enforcement of Vermont’s orders. The Circuit Court dismissed the lawsuit, and today the Virginia Court of Appeals affirmed that decision.

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