Recognition of Vermont Visitation Decree for Lesbian Mom, Miller-Jenkins v. Miller-Jenkins

Janet and Lisa Miller-Jenkins lived in Virginia, and traveled to Vermont to enter into a civil union. Back in Virginia, they decided to have a child, and Lisa was artificially inseminated. Lisa gave birth to Isabella in April 2002. A couple of months later, Lisa, Janet and Isabella moved to Vermont. Isabella bonded with both women, who both acted as mothers to her. In 2003, the couple split up. Lisa moved with Isabella to Virginia. Lisa then filed a petition for dissolution of the civil union in Vermont family court. As part of the civil union dissolution, Lisa conceded that Janet had parental rights to Isabella and in light of that fact asked the the Vermont court to determine custody of Isabella.

In June 2004, the Vermont court issued a temporary custody order providing that Janet have visitation and contact with Isabella. Lisa, however, refused to obey the order and instead filed a new custody proceeding in Frederick County Circuit Court on July 1, 2004. Ignoring state and federal statutes on child custody jurisdiction, the Virginia judge held that he had jurisdiction over the case. He relied on the recently enacted "Marriage Affirmation Act," which declares civil unions and other agreements "purporting to bestow the privileges and obligations of marriage" between persons of the same sex to be unenforceable. We have joined Janet’s original lawyer in appealing the case to the Virginia Court of Appeals, and our appellate brief was filed on December 7, 2004. Oral arguments were heard on September 14, 2005. While awaiting the Virginia Court of Appeals' ruling, the Vermont Supreme Court on August 4, 2006 held that Vermont has jurisdiction over the case, and that Lisa was in contempt of court order for refusing to allow visitation. On November 28, 2006 the Virginia Court of Appeals concurred with the Vermont Supreme Court's ruling.

The Court of Appeals denied Lisa's request for a hearing before the full court, and she asked the Virginia Supreme Court to hear the case. On May 7, 2007, the Virginia Supreme Court of Appeals dismissed her appeal because she failed to file a notice of appeal. In a related ruling, the Virginia Court of Appeals held in April 2007 that the Frederick County Circuit Court must give full faith and credit to Vermont's orders. The Virginia Supreme Court reviewed that decision and heard arguments on April 17, 2008.

On June 6, 2008, the Virginia Supreme Court upheld the Court of Appeals decision giving Vermont jurisdiction. The Court declined to overrule the 2006 Court of Appeals ruling that Vermont had custody over the case under the federal Parental Kidnapping Prevention Act and held that the 2006 opinion was the final word on all of the relevant legal issues.

The 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 Lisa failed to appeal the 2006 Court of Appeals decision, she could not later raise the identical legal issues that were decided in that appeal.  Lisa petitioned the U.S. Supreme Court to review the Virginia Supreme Court decision. The petition was denied on December 8, 2008.

Lisa Miller then initiated a new action, which asked the Frederick County Circuit Court not to enforce Vermont's orders because of Virginia's constitutional marriage amendment banning same-sex marriage. On August 15, 2008, Judge John Prosser dismissed Lisa's claims and remanded the case to the county juvenile and domestic relations court for enforcement of the Vermont order.  On June 23, 2009, the Virginia Court of Appeals affirmed Judge Prosser's ruling.

Janet subsequently filed a new lawsuit in Circuit Court, asking for an order to prohibit any registration or enforcement of the Vermont orders. The Circuit Court dismissed that case and instead remanded to the J&DR Court for registration of the Vermont orders. On January 6, 2009, the J&DR court ordered that the orders be registered and that Lisa comply with them. Lisa appealed to the Circuit Court, which affirmed on March 2, 2009. Lisa appealed those decisions to the Virginia Court of Appeals, and oral argument took place on December 9, 2009.  The Virginia Court of Appeals on February 23, 2010 affirmed the lower court's ruling that the Vermont custody order be registered and enforced.  On May 5, 2010, the Virginia Supreme Court denied Lisa's petition for appeal.  On November 8, 2010, the U.S. Supreme Court also declined to review the Virginia Court of Appeals decision.

On November 20, 2009, the Vermont Court ordered that custody be transferred from Lisa to Janet on January 1, 2010.  We registered the order in Bedford County Juvenile and Domestic Relations Court, over Lisa's attorney's objections.  However, Lisa did not transfer Isabella to Janet as ordered, and both Lisa and Isabella are missing.  A man named Timo Miller (no relation to Lisa) had been charged with aiding and abetting Lisa's flight, but in November 2011, the criminal charges against him were dropped in exchange for his willingness to testify in the case against Lisa Miller.  On February 23, 2010, a Vermont family court judge held Lisa in contempt of court for failing to turn over custody of the child, and a warrant has been issued for her arrest.  Lisa's lawyers had appealed the order to transfer custody, but on October 29, 2010, the Vermont Supreme Court affirmed the lower court's order to transfer custody of the child from Lisa to Janet.

Court Documents (click links to view .pdf)
Motion to Enforce Vermont's Orders, July 10, 2008- Frederick County/Winchester Circuit Court
Demurrer, July 14, 2008- Frederick County/Winchester Circuit Court
Opinion, June 6, 2008- Virginia Supreme Court
Reply Brief, Filed Nov. 16, 2007- Virginia Supreme Court
Reply Brief, Filed Feb. 23, 2005- Virginia Court of Appeals
Opening Brief - Virginia Court of Appeals


Rebecca K. Glenberg, ACLU of Virginia; Gregory Nevins, Lambda Legal Defense and Education Fund

Pro Bono Law Firm(s)

Joseph Price, Arent, Fox, Washington, D.C

Date filed

August 30, 2004


Virginia Court of Appeals