Case Law Development: FPKPA Requires Virginia Must Enforce Custody Determination of Vermont Court in Civil Union Dissolution

Virginia has taken a step toward resolution of the on-going tension over whether Virginia would recognize a Vermont civil union between two women as providing a basis for custody rights in the non-biological parent-partner (See Family Law Prof Blog postings of August 7 and March 15) The Virginia court of appeals today unanimously accepted a ruling of the Vermont Supreme Court that conferred parental rights on both women. The court ruled that the trial court erred in failing to recognize that the Parental Kidnapping Prevention Act prevented its exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court. Because biological mother filed papers in Vermont to dissolve the civil union in 2003, the appeals court said, the Vermont courts thereby gained sole jurisdiction over custody and visitation issues concerning the child born during their union.

Regarding the effect of the federal and state DOMA acts, the court concluded

Nothing in the wording or the legislative history of DOMA indicates that it was designed to affect the PKPA and related custody and visitation determinations. Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.

Janet Miller-Jenkins v. Lisa Miller-Jenkins (November 28, 2006)
Opinion on web (last visited November 28, 2006)