Many wonder what would happen when a same-sex marriage or civil union breaks up and the former partners move into states that don't recognize same-sex marriage. The case of Lisa Miller and Janet Jenkins is one such example involving Vermont and Virginia law.
New York Times said:Mother in Virginia Loses Bid to Void Same-Sex Ruling in Vermont on Child Custody
Virginia must honor a child custody order from a Vermont court issued after the breakup of a same-sex civil union there, the Virginia Supreme Court ruled on Friday.
The decision effectively granted parental rights to both members of a same-sex couple, notwithstanding a Virginia law, the Affirmation of Marriage Act, that makes same-sex unions from other states “void in all respects.”
A Virginia trial judge in 2004 had granted sole custody of Isabella Miller-Jenkins, now 6, to Lisa Miller, her biological mother, citing the Virginia law. Ms. Miller has said that she rejected homosexuality when she became a Christian, that she is Isabella’s only mother, and that she does not want her former partner, Janet Jenkins, to have visitation rights.
In 2006, a Virginia appeals court reversed the trial court’s decision, ruling that a 1980 federal law, the Parental Kidnapping Prevention Act, required Virginia to defer to the Vermont courts.
An appeal of the Virginia appellate decision was dismissed last year by the Virginia Supreme Court because it was filed too late.
Friday’s decision concerned an appeal by Ms. Miller of a related ruling from the appeals court, this one reinstating registration of a custody and visitation order from Vermont. Justice Barbara Milano Keenan, writing for a unanimous Virginia Supreme Court, said the attempt was improper.
“Each of the issues Lisa raises in this appeal was addressed and resolved in the first Virginia appeal,” Justice Keenan wrote.
Justice Keenan emphasized, however, that Friday’s ruling was binding “only with respect to the parties and the issues in the case before us.”
In concurring, Chief Justice Leroy Rountree Hassell Sr. went further, saying he believed that the appeals court’s first decision in the case was incorrect but that Ms. Miller had fumbled her effort to appeal it.
Mathew D. Staver, a lawyer for Ms. Miller, said she would ask the United States Supreme Court to review the decision of the Vermont Supreme Court. Mr. Staver added that Friday’s decision illustrated “the tangled web” created by civil unions in Vermont and the same-sex marriages available now in Massachusetts and soon in California.
“It embroils every other state around the nation in the debate over traditional marriage,” Mr. Staver said.