Update: Vt.-Va. lesbian custody battle

by Walter Olson on August 26, 2006

The Vermont Supreme Court has rejected (opinion, Miller-Jenkins v. Miller-Jenkins, Aug. 4) a Virginia court’s attempt to invalidate a pre-existing Vermont order giving Janet Miller-Jenkins rights to visit the child that she and former partner Lisa Miller-Jenkins raised before their breakup. Eugene Volokh (Aug. 4, see also second post of that date) explains why the Virginia court is on shaky ground:

First, despite how Lisa’s lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren’t married. The relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to “enforce according to its terms” out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) … (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), “A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination”).

Volokh rejects the position — advanced by some readers in the comments thread — that the federal Defense of Marriage Act should be construed as overriding the PKPA in this case. It is rather remarkable how many social-conservative commentators fail even to mention the PKPA in discussing the dispute. Earlier coverage of the case: Aug. 15 and Dec. 16, 2004.

{ 2 comments }

1 dweeb 08.28.06 at 5:40 pm

The issue seems to be more parental rights than anything to do with civil unions. One should not accrue parental rights just because one has a relationship with a biological parent. My ex-wife had a son when I married her, and regardless of what transpired during our marriage, I wouldn’t dream of interfering with her right to raise him as she sees fit, including not seeing me, after we divorced.

2 Deoxy 08.29.06 at 10:20 am

dweeb,

You’re exactly right about the issue being parental rights, but the issue in this case is that is if the laws involved DO grant rights regardlss of marriage or biological parenthood, and there are such cases in some states.

Of course, the results in this case should be identical to what would happn to a hetero couple… simply for reasons of track record (I don’t know anything specific here), I am skeptical.

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