Virginia court says Vermont has jurisdiction in one custody fight; Pennsylvania Supreme Court refuses to hear appeal in second case
A Virginia appeals court ruled unanimously on Tuesday that Vermont courts have jurisdiction in a custody battle between two former lesbian partners. And in Pennsylvania on Wednesday, the state’s Supreme Court refused to hear an appeal of a lower-court ruling giving a non-biological parent primary custody of the children from her previous lesbian relationship with the children’s biological mother.
The Court of Appeals of Virginia remanded the dispute between Janet Jenkins and Lisa Miller to a lower court, which claimed Virginia had jurisdiction in the case.
In August, the Vermont Supreme Court ruled that Vermont courts, and not those in Virginia, had exclusive jurisdiction over a custody case involving the two women, who had a child while in a lesbian relationship. The women, who had changed their last names to Miller-Jenkins, entered into a legal civil union in Vermont. During their relationship Lisa Miller became pregnant through artificial insemination and gave birth to their daughter.
But when the women’s relationship ended, Miller moved to Virginia but asked the Vermont court to dissolve the civil union and give her sole custody of the child. When the Vermont court ordered that Jenkins be allowed visitation, Miller instead took the matter to court in Virginia, using that state’s anti-gay marriage law to have herself named as the child’s sole parent.
Earlier this month, the Vermont court had ordered Miller to pay several thousand dollars in fines, saying she was in contempt of court for refusing to allow Jenkins to see the child.
Greg Nivens, senior staff attorney in the Southern Regional Office of Lambda Legal Defense and Education Fund, is one of the attorneys representing Janet Miller-Jenkins in the case. Nivens said Tuesday that the Virginia court’s ruling was a relief for his client.
“This has been a long road for Janet, and now, she’s that much closer to seeing her daughter again,” Nivens said. “The Virginia Court of Appeals rightly recognized that federal law protects parents against the very thing Lisa Miller did parents cannot shop around looking for a court to give them sole custody.”
In returning the case to a lower court, Virginia Appeals Judge Jere Willis Jr. stressed that the court was not addressing the issue of civil unions.
“This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont,” Willis wrote. “The only question before us is whether, considering the [Parental Kidnapping Prevention Act], Virginia can deny full faith and credit to the orders of the Vermont court. It cannot.”
In Pennsylvania, the Supreme Court’s refusal to hear an appeal in the custody battle between Patricia Jones and Ellen Boring, the court let stand a lower court ruling awarding custody to Jones, the non-biological parent, on the basis that Jones would provide a better home for the children than would Boring.
“Today, the court has protected the best interests of these children and held them above all else,” said Alphonso David, the Lambda Legal staff attorney who argued Jones’ case before the Pennsylvania Superior Court.
Jones and Boring were partners for 14 years, during which time Boring gave birth to the couple’s twin children. After the relationship ended in 2001, a trial court found that Jones had parental rights and awarded joint custody to both mothers, with primary physical custody going to Boring, the biological mother.
Jones later filed for primary physical custody, citing Boring’s history of ignoring the court-ordered visitation schedule and her repeated attempts to take the children out of the state. The court then awarded Jones primary physical custody after finding “convincing reasons” that the best interest of the children would be served by doing so.
Boring appealed to the Superior Court of Pennsylvania, which upheld the lower court’s decision.
This article appeared in the Dallas Voice print edition, December 1, 2006.