In a related ruling, Vermont Supreme Court affirms transfer of custody.

Washington, D.C – The U.S. Supreme Court today let stand decisions made by the Virginia Court of Appeals and a lower court, which require that child custody orders from a Vermont court must be complied with in Virginia.  The Virginia Supreme Court had also declined to review the Court of Appeal’s decision in this matter.
The case involving a long-running custody dispute over a child born during the civil union of two Vermont women was heard in Virginia because the biological mother, Lisa Miller, moved here after the couple separated and asked a Virginia Juvenile and Domestic Relations Court to nullify visitation arrangements for the non-biological mother, Janet Jenkins, as set forth by the Vermont Family Court.  The ACLU of Virginia and the Lambda Legal Defense and Education Fund represent Jenkins in Virginia.
Lisa Miller initially filed a case in a Vermont court, which ruled that Miller’s former partner, Janet Jenkins, should have visitation with the child.  Jenkins had acted as the child’s parent since her birth.  Miller refused to comply with that order, and instead filed a new action in a Virginia court.
The Virginia Court of Appeals and the Virginia and Vermont Supreme Courts 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.
“In declining to review the case for the fifth time, the U.S. Supreme Court has made it clear that they do not need to weigh in on this dispute and that the law is quite clear on this matter -- one state must honor decisions made by another state’s courts,” said ACLU of Virginia Executive Director Kent Willis.
In a related ruling, the Vermont Supreme Court on October 29, 2010, affirmed the transfer of custody from Miller to Jenkins.  In part because Miller had repeatedly refused to allow Jenkins to visit with the child, a Vermont court late last year ordered that custody be transferred.  When Miller failed to transfer the child to Jenkins and disappeared with the child, the court issued a contempt ruling and an arrest warrant.
Additional case history is provided below.

Contact: Kent Willis, ACLU of Virginia, Executive Director, (804) 644-8022


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 not have ruled on the child’s parentage. 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.  Miller petitioned the U.S. Supreme Court for certiorari, seeking review of the Virginia Supreme Court decision.  The petition was denied on December 8, 2008.
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 in June 2009 the Virginia Court of Appeals affirmed that decision.
On January 6, 2009, the J&DR court ordered that the Vermont court’s orders be registered and that Miller comply with them.  Miller appealed to the Circuit Court, which affirmed on March 2, 2009.   Miller appealed those decisions to the Virginia Court of Appeals, which heard oral arguments on December 9, 2009.  On February 23, 2010, the Virginia Court of Appeals affirmed the lower court’s ruling that the orders be registered and enforced.  Miller appealed to the Virginia Supreme Court and the U.S. Supreme Court.  Both courts declined to review the case, on May 5, 2010 and November 8, 2010, respectively.
In a related issue, on November 20, 2009, the Vermont Court ordered that custody be transferred from Miller to Jenkins on January 1, 2010.  However, Miller did not transfer the child to Jenkins as ordered, and both Miller and the child are missing. On February 23, 2010, a Vermont family court judge held Miller in contempt of court for failing to turn over custody of the child and a warrant has been issued for her arrest.  Miller’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 Miller to Jenkins.