Lawyers from the ACLU of Virginia, Equality Virginia, and Lambda Legal Defense and Education Fund today filed a brief in the Virginia Court of Appeals on behalf of Janet-Miller Jenkins in an interstate custody battle between her and former partner Lisa Miller-Jenkins.
The couple 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. Lisa conceived and carried the couple’s daughter. In April 2002, the couple’s daughter was born Virginia.
Several months later, the family moved to Vermont. Lisa and Janet together raised their daughter as co-parents until they separated in the fall of 2003. Despite Janet’s objections, Lisa took the child and moved to Virginia. In November 2003, Lisa filed a petition for dissolution of the civil union in the Rutland Family Court in Vermont. In the petition, Lisa acknowledged that born of the civil union, and asked the court to award custody to her and visitation for Janet. Lisa also asked the court to order Janet to pay child support.
In June 2004, the Vermont court issued a temporary custody order giving primary custody to Lisa and allowing visitation for Janet. Instead of following that order, Lisa filed a new action in Frederick County Circuit Court in Virginia. The Virginia court found that Lisa was the child’s sole parent and that Janet had no right to custody or visitation. The court cited Virginia’s “Marriage Affirmation Act,” which went into effect on July 1 and banned certain contracts between people of the same sex. In the meantime, the Vermont Court held Lisa in contempt for refusing to allow Janet visitation, and later held that Janet is a legal parent of the child.
Today’s brief argues that the Virginia court did not have jurisdiction to make decisions concerning custody and parentage of the child. Federal and state law provide that once a court takes jurisdiction of a child custody case, a court from another state may not interfere.
“This kind of turf fight between state courts is exactly what these state and federal laws were designed to prevent,” said Kent Willis, executive director of the ACLU of Virginia. “If Virginia courts insist on overruling other state’s custody determinations, the children will be the ones to suffer most.” Added Willis, “This disaster is just the kind of thing we and others worried about when the so-called Marriage Affirmation Act was passed.”
A friend-of-the-court brief was also filed today in support of Janet Miller-Jenkins by the Virginia Chapter of the National Association of Social Workers, the Virginia Women Attorneys Association, Virginia Poverty Law Center, Inc., Virginia National Organization for Women, and the Virginia Organizing Project, represented by attorney Thomas Wolf of LeClair Ryan in Richmond.
Janet Miller-Jenkins is represented by Joseph Price, the president of Equality Virginia and an attorney at Arent Fox in Washington, D.C., Gregory Nevins of Lambda Legal Defense and Education Fund in Atlanta, and Rebecca Glenberg, legal director of the ACLU of Virginia.
ACLU of Virginia Contacts: Kent Willis, Executive Director Rebecca Glenberg, Legal Director 804-644-8022