Monday, August 7, 2006

Case Law Development: Vermont Supreme Court Rejects Viriginia Court's Parentage Determination

The Vermont Supreme Court upholds its state's jurisdiction to determine visitation rights to the daughter born during a lesbian couple's civil union. 

Lisa and Janet lived in Virginia but traveled to Vermont in 2001 to establish a civil union.  Lisa had a daughter by artificial insemination in 2002, after which the couple moved to Vermont.  The couple separated in 2003 and Lisa moved back to Virginia.  She filed an action to dissolve the civil union in Vermont, alleging that Daughter was a child of the civil union, and the Vermont court issued temporary orders granting Lisa custody and Janet parenting time.   In 2004, after the Vermont court had already filed its temporary orders, and just after the Virginia Affirmation of Marriage Act became law, Lisa filed a parentage action in Virginia.  The Virginia and Vermont courts could not agree on the ensuing jurisdictional dispute and the Virginia court held that it need not recognize the civil union and found that Janet had no parentage rights.  The Vermont court refused to credit the Virginia court's decision and found both Lisa and Janet to be legal parents of their child and issued an order of contempt against Lisa for her failure to abide by the temporary visitation order.  Lisa appealed.

The Vermont Supreme Court summarized the case:

This case is, at base, an interstate jurisdictional dispute over visitation with a child. Lisa argues here that the Vermont family court should have given full faith and credit to the Virginia court's custody and parentage decision, which determined Janet had no parentage or visitation rights with respect to IMJ. The family court rejected this argument because it concluded the Virginia decision did not comport with the PKPA, which was designed for the very purpose of eliminating jurisdictional battles between states with conflicting jurisdictional provisions in child custody disputes. The Vermont court determined it had exercised jurisdiction consistent with the requirements of the PKPA and had continuing jurisdiction at the time Janet's action was filed in Virginia. Therefore, it further concluded the Virginia court was prohibited from exercising jurisdiction by the PKPA, § 1738A(g), and the Vermont court had no obligation to give full faith and credit to the conflicting Virginia decision.

In affirming the trial court's decision, the Vermont court noted that Lisa agreed that, were she and Janet a married heterosexual couple, there would be no question but that the PPKA would prohibit the Virginia court from taking jurisdiction over the parentage action.   Among the arguments presented, Lisa argued that the PKPA has been superseded by the Defense of Marriage Act (DOMA), 28 U.S.C. § 1738C (2000), which would require that the Vermont court give full faith and credit to the Virginia decision and order. The court rejected this interpretation, reasoning

in no instance does DOMA require a court in one state to give full faith and credit to the decision of a court in another state. Its sole purpose is to provide an authorization not to give full faith and credit in the circumstances covered by the statute.... Under Lisa's interpretation, we would be required to give full faith and credit to the Virginia court's decision not to give effect to the fully valid order of the Vermont court. Indeed, if we were to accept that argument, the Vermont biological parent of a child born to a civil union could always move to another state to make a visitation order unenforceable in every state, including Vermont.... [W]e will not give "greater faith and credit" to another state's judgment that is in conflict with a valid judgment of our own courts.

Finally, the court affirmed the parentage determination, reviewing the precedent from other states involving same-sex couples and concluding that there were many reasons supporting the trial court's parentage decision "including, first and foremost, that Janet and Lisa were in a valid legal union at the time of the child's birth." Other factors included the couple's intent and subsequent actions, Lisa's identification of Janet as a parent of the child in the dissolution petition, the fact that "there is no other claimant to the status of parent, and, as a result, a negative decision would leave [the child] with only one parent."

Miller-Jenkins v. Miller-Jenkins, 2006 VT 78  (August 4, 2006)
Opinion on the web (last visited August 6, 2006 bgf)

News story on the case from Burlington VT WCAX-TV (last visited August 6, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/case_law_develo_5.html

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