637 S.E.2d 330 (Va.App. 2006), 2654-04-4, Miller-Jenkins v. Miller-Jenkins

Docket Nº:Record No. 2654-04-4.
Citation:637 S.E.2d 330, 49 Va.App. 88
Party Name:Janet MILLER-JENKINS v. Lisa MILLER-JENKINS.
Case Date:November 28, 2006
Court:Court of Appeals of Virginia
 
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Page 330

637 S.E.2d 330 (Va.App. 2006)

49 Va.App. 88

Janet MILLER-JENKINS

v.

Lisa MILLER-JENKINS.

Record No. 2654-04-4.

Court of Appeals of Virginia, Alexandria.

November 28, 2006

Page 331

Joseph R. Price (Lisa M. Vollendorf; Gregory R. Nevins ; Rebecca Glenberg ;

Page 332

John L. Squires; Arent Fox PLLC; Lambda Legal Defense & Education Fund, Inc.; American Civil Liberties Union; Equality VirginiaEducation Fund, on briefs), Richmond, for appellant.

Rena M. Lindevaldsen (Mathew D. Staver; Scott E. Thompson; Liberty Counsel, on brief), for appellee.

Amicus Curiae: Virginia Chapter of the National Association of Social Workers; Virginia Women Attorneys Association; Virginia Poverty Law Center, Inc.; Virginia National Organization for Women; Virginia Organizing Project (Thomas M. Wolf ; Kenya N. Washington ; LeClair Ryan, PC, on brief), for appellant.

Present: CLEMENTS , J., and WILLIS and ANNUNZIATA , S.J.

WILLIS, JR., Judge.

[49 Va.App. 91] Janet Miller-Jenkins (“Janet" ) appeals the October 15, 2004 “Final Order of Parentage" of the Circuit Court of Frederick County (“trial court" ). In that order, the trial court held (1) that Lisa Miller-Jenkins (“Lisa" ) is “the sole biological and natural parent of" IMJ, a minor, (2) that Lisa “solely has the legal rights, privileges, duties and obligations as parent hereby established for the health, safety, and welfare of" IMJ, and (3) that neither Janet “nor any other person has any claims of parentage or visitation rights over" IMJ.

On appeal, Janet contends the trial court erred (1) in failing to recognize that the federal Parental Kidnapping Prevention Act (“PKPA" ), 28 U.S.C. § 1738A , barred its exercise of jurisdiction, (2) in holding that the Virginia Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA" ), Code § 20-146.1 et seq. , permitted it to exercise jurisdiction, and (3) in refusing to enforce the June 17, 2004 custody order of the Rutland County, Vermont Family Court (“Vermont court" ).

We hold that the trial court erred in failing to recognize that the PKPA barred its exercise of jurisdiction. Accordingly, we vacate the orders of the trial court and remand this case with instruction to grant full faith and credit to the custody and visitation orders of the Vermont court.

I. BACKGROUND

Beginning in the late 1990's, the parties lived together in Virginia. On December 19, 2000, they traveled to Vermont [49 Va.App. 92] and entered into a civil union pursuant to the laws of that state. See Vt. Stat. Ann. Tit. 15, § 1201 et seq. Thereafter, while residing in Virginia, Lisa was artificially inseminated with sperm from an anonymous donor. In April 2002, she gave birth to IMJ. In August 2002, the parties and IMJ moved to Vermont and established residence there. In September 2003, the parties ended their relationship. Lisa moved to Virginia with IMJ. Janet remained in Vermont.

On November 24, 2003, Lisa filed in the Vermont court a “Complaint for Civil Union Dissolution." She designated IMJ as “the biological or adoptive" child of the “civil union." She asked the Vermont court to dissolve the civil union, to award her legal and physical “rights and responsibilities for the minor child," to award Janet “suitable parent/child contact (supervised)," and to “award payment of suitable child support money."

On June 17, 2004, the Vermont court entered a “Temporary Order Re: Parental Rights & Responsibilities." In that order, the Vermont court awarded Lisa “temporary legal and physical responsibility for the minor child of the parties," and awarded Janet “on a temporary basis, parent-child contact with the minor child as follows...." The order then listed the specifics of that contact, and in so listing thrice used the word “visitation."

On July 1, 2004, the day Virginia's Marriage Affirmation Act (“MAA" ), Code § 20-45.3 became law, Lisa filed in the trial court a “Petition to Establish Parentage and for Declaratory Relief." She asserted that she had “sole custody" of IMJ, and asked the court (1) to declare that she was “the sole parent of" IMJ, (2) to rule that she was “to be the sole parent of and to have sole parental rights over" IMJ, (3) to adjudicate any parental rights claimed by Janet “to be nugatory, void, illegal and/or unenforceable," and (4) to award her attorney's fees and costs.

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On July 19, 2004, after learning of the petition filed by Lisa in Virginia, the Vermont court entered the following order:

[49 Va.App. 93] This Vermont Court has and will continue to have jurisdiction over this case including all parent-child contact issues. This Court is unaware of any proceeding available in a state that does not recognize a civil union to resolve the issue of this case. This Court will not and cannot defer to a different State that would preclude the parties from a remedy.

The Temporary Order for parent-child contact [is] to be followed. Failure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody.

On July 29, 2004, Janet filed a demurrer to Lisa's Virginia petition. On August 18, 2004, the trial court entered an order (1) recognizing that Janet was entering a special appearance for the purpose of contesting jurisdiction, (2) directing the parties to file memoranda addressing the question of jurisdiction, and (3) staying all visitation between Janet and IMJ except for supervised visitation in Virginia. Following an August 24, 2004 hearing, the trial court ruled it had jurisdiction pursuant to the MAA and the UCCJEA. It memorialized this ruling in a September 9, 2004 order.1

Meanwhile, the Vermont court, by order entered September 2, 2004, held Lisa in contempt for refusing to comply with the child visitation terms of its June 17, 2004 order.

On October 15, 2004, the trial court entered the final order in this case, setting forth the holdings delineated in the first paragraph of this opinion.

On appeal by Lisa, the Supreme Court of Vermont (“Vermont Supreme Court" ) affirmed the judgment of the Vermont court, holding, inter alia, that the civil union entered into by Lisa and Janet was valid under Vermont law; that the Vermont [49 Va.App. 94] court had jurisdiction to dissolve that civil union and to determine all its implications, including the parentage of and parental rights and responsibilities with respect to IMJ; and that the Vermont court acted properly in holding Janet to be a parent of IMJ and in assigning parental rights and responsibilities to her. Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 at 956, 2006 WL 2192715, 2006 Vt. LEXIS 159 (Vt. Aug. 4, 2006) . It held that PKPA afforded preemptive jurisdiction to Vermont and denied full faith and credit...

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