Virginia Supreme Court affirms ruling in lesbian-custody case
Item by Chris Graham
freepress2@ntelos.net
The Virginia Supreme Court today affirmed an appeals-court ruling granting a woman full visitation rights to the daughter that she had been raising with her former lesbian partner.
The decision in the Jenkins v. Miller case also affirms that federal and state laws governing child-custody disputes apply equally to gay, lesbian, bisexual and transgender families in Virginia, civil-rights advocates said this morning.
“Most importantly,” said Dyana Mason, executive director of Equality Virginia, a Richmond-based civil-rights organizatin, “this common-sense decision means that the child involved in the dispute will have the love and support of both her parents as she grows up.”
Janet Jenkins and Lisa Miller entered into a civil union in Vermont in 2000. A daughter was born to the couple in 2002. Lisa Miller was the biological mother of the girl. The couple ended their relationship in 2003, and asked a Vermont court to dissolve their civil union and deal with issues related to the custody and visitation of their daughter.
In 2004, Miller filed a court action in Winchester asking that she be declared the sole parent of the girl, cutting off Jenkins’ visitation rights. The circuit court initially agreed and granted Miller sole custody of the girl, but the Virginia Court of Appeals reversed that decision on the basis of requirements in the U.S. Constitution that full faith and credit had to be given by the Virginia court to the earlier ruling in Vermont.
“This decision is fully consistent with Virginia, Vermont and federal law relating to child-custody disputes, and respects the requirements of the U.S. Constitution’s Full Faith and Credit Clause. The decision means that gay and lesbian parents can expect they will be treated just like any other parents in a custody dispute, regardless of their sexual orientation,” said Joseph R. Price of Arent Fox LLP, Washington, the lead attorney in the case representing Janet Jenkins.
“We are very pleased with the Supreme Court’s decision,” said ACLU of Virginia executive director Kent Willis. “It’s taken far too long, but we hope this will be the last stop in Janet’s pursuit to confirm her visitation rights.”
“The Virginia courts are simply following the accepted law and recognizing the custody and visitation decisions of another state, as it would expect other states to recognize its decisions,” said ACLU of Virginia legal director Rebecca Glenberg. “Lisa Miller-Jenkins does not get to cherry pick her courts to suit her liking. Simply because she did not like the Vermont court’s decision, does not allow her to try to get a more favorable ruling from another state.”
I read the decision in this case and, contrary to Dyana Mason’s statement, the decision is not a “common-sense decision [that] means that the child involved in the dispute will have the love and support of both her parents as she grows up.”
In fact, the Virginia Supreme Court’s ruling in Miller-Jenkins vs. Miller-Jenkins simply says Lisa Miller failed to file a timely appeal and that the case then fell under the “law of the case” doctrine (basically, that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case). Since she did not file her appeal on time, in the law’s eyes, Lisa was then bound by the previous decision.
As to the merits of the original case in the Court of Appeals, VA Supreme Court Justice Hassell had serious reservations, even though there was nothing the Court could do about it:
“I join the opinion of the Court. However, I write separately to state that I have serious concerns about the Court of Appeals’ opinion in the former appeal, Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 88, 637 S.E.2d 330 (2006). I do not believe that this decision was correctly decided. Lisa Miller-Jenkins failed to perfect an appeal from that decision in the manner required by law, see Miller-Jenkins v. Miller-Jenkins, Record No. 070355 (May 7, 2007), and, therefore, this Court could not review that decision. As the majority correctly holds, the law of the case doctrine prohibits this Court from considering the merits of the former appeal in this proceeding.”
This is not a news story, but an opinion piece. The Supreme Court’s ruling was not based on the merits of the case. Miller was denied based on a procedural defeat. I urge people to read the actual decision on the Court’s website, instead of basing opinions on the quotes of Jenkins’ attorney and three activists. In fact, had the Marriage Affirmation Act been argued on Miller’s behalf in her first appeal, then this appeal would have gone her way as well.