Virginia courts balance competing laws on civil unions in custody fight.

If one state recognizes civil unions and another doesn't, whose laws win in a custody battle? That's one of the questions raised by a knotty dispute between same-sex parents that began in Vermont and crossed into Virginia when one of the partners moved there and tried to have a custody and visitation order vacated, on the grounds that Virginia does not recognize civil unions.

For now, Virginia courts are recognizing the Vermont order. A ruling by the Virginia Court of Appeals found that the Vermont custody arrangement must be registered--that is, officially recognized--in Virginia. (Miller-Jenkins v. Miller-Jenkins, 2007 WL 1119817 (Va. App. Apr. 17, 2007).)

And the U.S. Supreme Court has declined to hear an appeal of a decision by the Vermont Supreme Court that upheld the custody and visitation order. (Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006), cert. denied, 2007 WL 444487 (U.S. Apr. 30, 2007) (No. 07-1110).)

The decisions are the latest in a lengthy and contentious battle that linked the debate over same-sex unions with two competing impulses of federal law.

In 2000, Lisa Miller and Janet Jenkins moved from their home state of Virginia to Vermont, where they entered into a civil union. At the time, Vermont was the only state that permitted civil unions of same-sex partners. Later, Lisa received artificial insemination and in 2002 gave birth to a daughter, Isabella. The two women raised the girl together until the next year, when Lisa--saying she had converted to Christianity and had renounced her gay lifestyle--moved back to Virginia with Isabella.

The civil union was legally dissolved, and Janet petitioned in a Vermont family court for visitation rights to Isabella. The court ruled in her favor, finding that both women were Isabella's legal parents. The court emphasized that the state held full jurisdiction over the women's civil union, its dissolution, and any custody arrangements that ensued, and would not defer such jurisdiction to any other state. On appeal, the Vermont Supreme Court affirmed this ruling.

But the Vermont decision--and the state's more tolerant attitude toward same-sex unions--butted up against a different reality in Virginia.

In 1996, Congress passed the federal Defense of Marriage Act (DOMA), which grants states the right to refuse recognition of same-sex unions. Virginia passed its own Affirmation of Marriage Act, which bars any "civil union, partnership contract, or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage." The statute holds that "any such civil union, partnership contract, or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."

Lisa Miller-Jenkins argued that DOMA and the Virginia law preempted Vermont's custody ruling, and a Virginia trial court agreed. In rejecting this reasoning, a Virginia appeals court invoked another federal law, the Parental Kidnapping Prevention Act (PKPA). The two laws set up a powerful potential conflict: DOMA allows a state to reject a civil union formed in another state, while the PKPA requires a state court to refuse to grant a new custody order when one has already been issued by another state.

"There was a lot of new ground plowed in this case," said Joseph Price of Washington, D.C., who was lead counsel for Janet Miller-Jenkins.

"There were two parallel tracks to this case," said cocounsel Rebecca Glenberg, legal director of the American Civil Liberties Union of Virginia. "The fight in Vermont was a full-on custody battle, and then it became more of a jurisdictional question: Can a parent undo a custody ruling from a state that recognizes civil unions and nonbiological parents by going to a state that does not? And do laws that protect stability in children's lives equally protect the stability of children of same-sex couples?"

Price noted that the PKPA was enacted precisely for this type of situation: to ensure that different state policies didn't create jurisdictional problems and to protect children by ensuring that a parent could not arbitrarily change the terms of a custodial decision, or child support award, that he or she disagreed with by simply moving to another state.

Price noted that Congress never intended DOMA to supplant or undo the PKPA scheme. "After it passed DOMA," he said, "Congress amended the PKPA--and never once touched whether DOMA had any impact on it, or if the PKPA should only extend to heterosexual marriages. Can you imagine? You'd have gay couples running around kidnapping their kids and moving from state to state. I don't think even conservatives would want that to happen."

While Miller-Jenkins was closely watched by advocates and opponents of same-sex unions, the Virginia appeals court in a 2006 decision (which originally affirmed the Vermont order) declined to discuss civil unions, taking instead a straightforward reading of the PKPA.

"We do not address whether Virginia law recognizes or endorses same-sex unions entered into another state or jurisdiction. We do not consider the merits of the rulings of the Vermont court," wrote Senior Judge Jere Willis Jr. "The issue before us is the narrow one of jurisdiction. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont. The PKPA forbids her prosecution of this action in the courts of this commonwealth." (Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va. App. 2006).)

"The decisions are simply jurisdictional, and they emphasize that this is a basic principle that applies as much to same-sex couples as it does to any other married couple," said Glenberg.

"It's clear that the arguments about DOMA and civil unions have no traction with the courts," Price said. He pointed out that the Vermont Supreme Court and the U.S. Supreme Court rejected appeals from the Vermont rulings, and he expects the Virginia Supreme Court will similarly decline to review the appeals court ruling in that state.

"There will undoubtedly be cases in the future that touch on those precise themes, now that more states are liberalizing civil unions. But right now, this doesn't happen to be that case yet," Price said.