The Vermont
supreme court said Friday that Vermont courts, not those in
Virginia, have exclusive jurisdiction in a battle between
two women over custody of a child they had while they
were in a relationship. The unanimous ruling in
Vermont conflicts with a series of decisions in
Virginia courts, which held that that state's laws banning
same-sex marriage controlled the case.
Vermont justice
John Dooley wrote, however, that it is Vermont's
laws that control the case because the women involved
in the dispute were legally joined in a civil union in
2000 and that is what governs their 2003 separation
and subsequent child custody disagreement.
Vermont became
the first state in the nation to recognize same-sex
couples' relationships in 2000 when it enacted a civil union
law. Whether such relationships would be recognized in
other states has been a matter of litigation. "This is
a straightforward interstate jurisdictional dispute
over custody, and the governing law fully supports the
Vermont court's decision to exercise jurisdiction and
refuse to follow the conflicting Virginia visitation
order," Dooley wrote.
The case involves
Lisa Miller-Jenkins and Janet Miller-Jenkins, who were
Virginia residents in 2000 when they traveled to Vermont to
be joined in a civil union. Lisa Miller-Jenkins
conceived a child through artificial insemination
while the couple were together, and they eventually moved to
Vermont.
About a year
later Lisa Miller-Jenkins renounced her homosexuality,
returned to Virginia, and denied Janet Miller-Jenkins's
demands for visitation rights. They were granted a
dissolution of their civil union, akin to divorce, and
Lisa Miller-Jenkins filed for full custody.
A Vermont family
court judge gave Janet Miller-Jenkins temporary
visitation, prompting Lisa Miller-Jenkins to file one month
later for full custody in Virginia courts. The Vermont
supreme court ruled in favor of Janet Miller-Jenkins
on three key issues: the visitation dispute, the
Vermont court's refusal to abide by the Virginia court's
orders, and a contempt order issued by the Vermont
family court against Lisa Miller-Jenkins for failing
to abide by its visitation order.
A lawyer
representing opponents of same-sex marriage said the dispute
undoubtedly will have to be resolved by the U.S. Supreme
Court. "It's a classic conflict between two states
over same-sex unions," said Mathew Staver, founder and
chairman of the anitgay Liberty Counsel, which is
representing one of the women in the dispute. "The real
question there is whether or not a state can have its
own policy that does not accept same-sex unions or
whether they have to accept the union of another
state."
But an attorney
who represents advocates of same-sex marriage said that
might not necessarily be so. Jennifer Levi of Gay and
Lesbian Advocates and Defenders said the Virginia
court of appeals has stayed its ruling pending a
decision by Vermont's courts, which now say the women were
legally joined and were both legal parents. "Once that
determination is made, that's where every court and
federal law couldn't be clearer about the fact that
Vermont has jurisdiction to resolve questions of
custody and visitation of that case," Levi said. "So I think
it's really premature to address where this will be
resolved. I'm very optimistic that the Virginia court
of appeals will rule consistent with the Vermont
supreme court." (AP)
