The state Supreme Court ruled Friday that Vermont courts, and not those in Virginia, have exclusive jurisdiction over a case involving two women battling for custody of a child they had while they were in a lesbian relationship.
The unanimous ruling conflicts with a series of decisions in Virginia, where courts ruled the state's anti-gay-marriage laws controlled the case.
Justice John Dooley wrote that Vermont civil union laws govern the women's 2003 separation and subsequent child custody disagreement because they were legally joined in a civil union there in 2000.
"This is a straightforward interstate jurisdictional dispute over custody, and the governing law fully supports the Vermont court's decision to exercise jurisdiction and refuse to follow the conflicting Virginia visitation order," Dooley wrote.
Vermont became the first state in the nation to recognize same-sex couples' relationships in 2000, enacting a civil union law. Connecticut is the only other state with such a law and whether such relationships would be recognized in other states has been a matter of litigation. Massachusetts is the only state that permits same-sex marriage.
Lisa and Janet Miller-Jenkins were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. In April 2002, Lisa Miller-Jenkins gave birth to a daughter, conceived through artificial insemination, and the family moved to Vermont full time that August.
About a year later, Lisa Miller-Jenkins renounced her homosexuality, returned to Virginia and denied Janet Miller-Jenkins' demands for visitation rights. They were granted a dissolution of their civil union and Lisa Miller-Jenkins filed for full custody.
A Vermont Family Court judge gave Janet Miller-Jenkins temporary visitation, prompting Lisa Miller-Jenkins to file for full custody in Virginia courts.
The Vermont Supreme Court ruled in favor of Janet Miller-Jenkins on the visitation dispute. The court also upheld a decision by Vermont Family Court refusing to abide by a Virginia decision giving Lisa Miller-Jenkins full custody, and a contempt order against her for failing to abide by the Vermont visitation order.
"It's a classic conflict between two states over same-sex unions," said Mathew Staver, founder and chairman of Liberty Counsel, which is representing Lisa Miller-Jenkins. "The real question there is whether or not a state can have its own policy that does not accept same-sex unions or whether they have to accept the union of another state."
Staver said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court. But Jennifer Levi, a lawyer with Gay & Lesbian Advocates & Defenders who represented Janet Miller-Jenkins, said the Virginia Court of Appeals could change its ruling in light of the Vermont high court's decision.