Vermont Claims Jurisdiction

by Judith E. Beckett, R.N.

Vermont Claims Jurisdiction in Same-Sex Custody Case

August 4, 2006 – The Vermont Supreme Court ruled unanimously today that it is Vermont law that will determine the outcome of a custody case involving two women who had a child while in a lesbian relationship. The determination hinges on a federal law, the Parental Kidnapping Protection Act (PKPA), and a state statute, the Uniform Child Custody Jurisdiction Act (UCCJA). Virginia courts have disagreed with the Vermont ruling, maintaining that Virginia’s anti-gay marriage laws should have control in this dispute.

Janet Miller-JenkinsThe case involves two women, Lisa Miller-Jenkins and Janet Miller-Jenkins, who were involved in an openly lesbian relationship from 1998 to September, 2003. They traveled to Vermont from Virginia where they resided in 2000 to be joined in a civil union. In 2001, Lisa conceived a child through artificial insemination with an anonymous donor that they selected together. The couple had a daughter, Isabella, in April 2002. In August of the same year, the family moved to Vermont believing that Vermont might be a better place to raise a child with two mothers.

Apparently things didn’t go as well as they’d hoped because Lisa filed for a dissolution of the couple’s union in November of 2003. At that time, Lisa acknowledged Janet as Isabella’s legal parent and asked that she be given visitation rights and pay child support. Vermont issued an initial order granting Lisa’s request for full custody and visitation rights for Janet the following June.

Meanwhile, Lisa moved back to Virginia, became a Christian, and renounced her homosexuality. She has been in contempt of court for the past two years, refusing to allow Janet to see Isabella. On July 1, 2004, when the Affirmation of Marriage Act prohibiting Virginia from recognizing out-of-state, same-sex unions took effect in Virginia, Lisa turned to the Virginia courts, asking them to re-decide her case and find her sole parent of the couple’s daughter.

This attempt to avoid an unfavorable custody ruling is called “forum shopping” and the two laws mentioned above, PKPA and UCCJA, were passed to prevent parents moving from state to state looking for a more desirable outcome. Under these laws, once a court in one state has taken jurisdiction over a child custody case, another state can not also take jurisdiction over the case but must defer to and enforce the orders of the first court.

This case tests whether a state like Virginia that doesn’t recognize civil unions or gay marriage can ignore the decrees of states like Vermont, Connecticut or Massachusetts that have legalized same-sex unions. Virginia believes it can and, in August 2004, the Virginia court ruled that the Affirmation of Marriage Act overruled Vermont, Virginia and federal laws that have been in effect for twenty years. This decision is now under appeal and has been awaiting the decision of the Vermont Supreme Court. Legal experts believe that the differing interpretations by two state courts could ultimately place the issue of civil unions and same-sex marriage before the United States Supreme Court.

Vermont passed the nation’s first civil-union law in 2000, recognizing same-sex relationships as the legal equal of heterosexual marriage. Connecticut has since passed a similar law. Massachusetts is the only state that has legalized same-sex marriage. The issue of the validity of these same-sex unions in other states is currently a topic of legal dispute critical to lesbian and gay people.

Click here to read the entire Vermont ruling:

State of Vermont Ruling

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