Friday, June 6, 2008

Virginia lets Vermont visitation ruling stand

Those of who hoping for a dramatic clash of states-beginning-with-V in the U.S. Supreme Court will no doubt be disappointed: Virginia's Supreme Court (PDF) today apparently closed a long-running dispute between feuding same-sex parents, leaving untouched a Vermont court's award of visitation rights to the non-biological mother. No doubt even more disappointing for those in the bleachers, the high court didn't address whether the state's anti-marriage constitutional amendment stood in the way of enforcing the Vermont court order.

Instead, the court resolved the appeal on the basis of the "law of the case doctrine": because Lisa Miller-Jenkins failed to file a timely appeal from an earlier Virginia Court of Appeals decision in a separate, but essentially identical, lawsuit, she was barred from raising the same issues before the state's highest court now.

The earlier Virginia appeals decision, in accord with the Vermont Supreme Court's decision in the same case, held that under the federal Parental Kidnapping Prevention Act, Vermont had exclusive jurisdiction over custody of the child. The point of the PKPA is to prevent parents who get a court decision they don't like from making off with the child to another jurisdiction to re-litigate the issue there. Under the PKPA, whether a Vermont civil union -- which the two women in the case formerly had -- would be recognized by Virginia courts is beside the point.

How Appealing sums up early press coverage.

Equality Virginia (which represented non-biological mother Janet Miller-Jenkins) provides a FAQ on the case.

While this appears to resolve the Miller-Jenkins case, it also means the Virginia Supreme Court could consider similar arguments -- that its anti-marriage law and amendment preclude recognizing other states' family court orders, notwithstanding the PKPA -- in a later case.

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