High Court Lets Stand a Virginia Supreme Court Decision Holding that Vermont Has Jurisdiction over the Dispute

Washington, D.C. -- The U.S. Supreme Court today let stand rulings from the Virginia Supreme Court and Virginia Court of Appeals recognizing that Vermont, not Virginia, has jurisdiction in a long-running custody dispute over a child born during the Vermont civil union of two women. 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.
The decision is the U.S. Supreme Court’s fifth rejection of biological mother Lisa Miller’s attempts to have it overrule decisions from Virginia and Vermont appellate courts, all of which have held that Vermont has jurisdiction over the case, and that Virginia must honor Vermont’s rulings.
“We are very pleased with the Supreme Court’s decision,” said ACLU of Virginia Executive Director Kent Willis. “With both Virginia and Vermont courts agreeing that Vermont has jurisdiction, there is clearly no need for the U.S. Supreme Court to step in.”
“The Virginia courts have simply followed the accepted law and recognized the custody and visitation decisions of another state, as they would expect other states to recognize their decisions,” said ACLU of Virginia Legal Director Rebecca Glenberg. “Lisa Miller does not get to cherry pick her courts to suit her liking. Simply because she did not like the Vermont court’s decision, does not allow her to try to get a more favorable ruling from another state.”
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.

Contact: Kent Willis, ACLU of Virginia (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 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. Today, the U.S. Supreme Court declined to review that decision.