912 A.2d 951 (Vt. 2006), 2004-443, Miller-Jenkins v. Miller-Jenkins

Docket Nº:2004-443 & 2005-030
Citation:912 A.2d 951, 180 Vt. 441, 2006 VT 78
Opinion Judge:DOOLEY, J.
Party Name:Lisa Miller-Jenkins v. Janet Miller-Jenkins
Attorney:Judy G. Barone of Readnour & Barone, Rutland, and Mathew D. Staver and Rena M. Lindevaldsen, Liberty Counsel, Longwood, Florida, for Plaintiff-Appellant. Theodore A. Parisi, Jr. of Law Offices of Theodore A. Parisi, Jr., P.C., Castleton, and Mary L. Bonauto, Jennifer L. Levi and Karen L. Loewy, G...
Judge Panel:PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Case Date:August 04, 2006
Court:Supreme Court of Vermont
 
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Page 951

912 A.2d 951 (Vt. 2006)

180 Vt. 441, 2006 VT 78

Lisa Miller-Jenkins

v.

Janet Miller-Jenkins

Nos. 2004-443 & 2005-030

Supreme Court of Vermont

August 4, 2006

As Corrected January 18, 2007.

Motion for Reargument Denied November 9, 2006

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On Appeal from Rutland Family Court. William D. Cohen, J.

Affirmed and remanded.

Judy G. Barone of Readnour & Barone, Rutland, and Mathew D. Staver and Rena M. Lindevaldsen, Liberty Counsel, Longwood, Florida, for Plaintiff-Appellant.

Theodore A. Parisi, Jr. of Law Offices of Theodore A. Parisi, Jr., P.C., Castleton, and Mary L. Bonauto, Jennifer L. Levi and Karen L. Loewy, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Defendant-Appellee.

Eileen M. Blackwood of Blackwood & Danon, P.C., Burlington, for Amicus Curiae Vermont Psychiatric Association, Vermont Chapter of the National Association of Social Workers, Lynn Bond, Ph.D., David Chambers, J.D., Esther Rothblum, Ph.D., and Jacqueline S. Weinstock, Ph.D.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

OPINION

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[180 Vt. 444] DOOLEY, J.

[¶1] Lisa Miller-Jenkins appeals a family court decision finding her ex-partner, Janet Miller-Jenkins, to be a parent of their three-year-old child conceived via artificial insemination. On appeal, Lisa 1 contests three family court decisions. First, she appeals the [180 Vt. 445] decision by the Vermont family

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court that found both her and Janet to be legal parents of their child [hereinafter IMJ], and awarded Lisa temporary legal and physical rights and responsibilities of the child and Janet temporary parent-child contact. Second, Lisa appeals the family court's refusal to give full faith and credit to a Virginia court order, issued after the Vermont court's temporary custody and visitation order, that was contrary to the Vermont decree and that precluded Janet's visitation rights. Finally, Lisa appeals an order of contempt issued by the family court based on her failure to abide by the temporary visitation order.

[¶2] We granted interlocutory appeal to address the validity of these orders. We conclude the civil union between Lisa and Janet was valid and the family court had jurisdiction to dissolve the union. Further, we decide that the family court had exclusive jurisdiction to issue the temporary custody and visitation order under both the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. § § 1031-1051, and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (2000). We affirm the family court's determination that Janet is a parent of IMJ, the resulting visitation order, and the order of contempt issued against Lisa for her failure to abide by the visitation order.

[¶3] Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

[¶4] On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the " biological or adoptive child[]of the civil union." Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court issued a temporary order on parental rights and responsibilities on June 17, 2004. This order awarded Lisa temporary legal and physical responsibility for [180 Vt. 446] IMJ, and awarded Janet parent-child contact for two weekends in June, one weekend in July, and the third full week of each month, beginning in August 2004. The family court also ordered Lisa to permit Janet to have telephone contact with IMJ once daily.

[¶5] Although Lisa permitted the first court ordered parent-child-contact weekend, she did not allow Janet to have parent-child contact after that date, nor did she allow Janet to have telephone contact with IMJ, as the family court had ordered. In fact, Lisa has not allowed Janet to have any contact with IMJ other than during that first weekend. Meanwhile, on July 1, 2004, after the Vermont court had already filed its temporary custody and visitation order and parentage decision, Lisa filed a petition in the Frederick County Virginia Circuit Court and asked that court to establish IMJ's parentage.

[¶6] In response, on July 19, 2004, the Vermont court reaffirmed its " jurisdiction over this case including all parent-child contact issues," stated that it would not " defer to a different State that would preclude

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the parties from a remedy," and made clear that the temporary order for parent-child contact was to be followed. It added that " [f]ailure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody."

[¶7] Although the Vermont and Virginia courts consulted by telephone, an interstate parental-rights contest ensued. On September 2, 2004, the Vermont court found Lisa in contempt for willful refusal to comply with the temporary visitation order. On September 9, the Virginia court held it had jurisdiction to determine the parentage and parental rights of IMJ and that any claims of Janet to parental status were " based on rights under Vermont's civil union laws that are null and void under Va. Code § 20-45.3." On October 15, the Virginia court followed with a parentage order finding Lisa to be the " sole biological and natural parent" of IMJ and holding that Janet has no " claims of parentage or visitation rights over" IMJ. That order is on appeal to the Virginia Court of Appeals.

[¶8] On November 17, 2004, the Vermont court found that both Lisa and Janet had parental interests in IMJ and set the case for a final hearing on parental rights, property, and child support. Thereafter, on December 21, 2004, the Vermont court issued a ruling refusing to give full faith and credit to the Virginia parentage decision. Lisa appealed both of these decisions, as well as the decision finding her in contempt.

[180 Vt. 447] I. Interstate Jurisdiction and Full Faith and Credit

[¶9] This case is, at base, an interstate jurisdictional dispute over visitation with a child. Lisa argues here that the Vermont family court should have given full faith and credit to the Virginia court's custody and parentage decision, which determined Janet had no parentage or visitation rights with respect to IMJ. The family court rejected this argument because it concluded the Virginia decision did not comport with the PKPA, " which was designed for the very purpose of eliminating jurisdictional battles between states with conflicting jurisdictional provisions in child custody disputes." The Vermont court determined it had exercised jurisdiction consistent with the requirements of the PKPA and had continuing jurisdiction at the time Lisa's action was filed in Virginia. Therefore, it further concluded the Virginia court was prohibited from exercising jurisdiction by the PKPA, § 1738A(g), and the Vermont court had no obligation to give full faith and credit to the conflicting Virginia decision.

[¶10] In analyzing Lisa's arguments, we note that she does not contest that if she and Janet were a validly married heterosexual couple, the family court's PKPA analysis would be correct. Because of her tacit acceptance of the family court's analysis with regard to jurisdiction under the PKPA, we provide only a summary description of why we believe that the family court was correct.

[¶11] The purpose of the PKPA is to determine when one state must give full faith and credit to a child custody determination of another state, such that the new state cannot thereafter act inconsistently with the original custody determination. Thompson v. Thompson, 484 U.S. 174, 181, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988). The PKPA follows on, and includes many of the provisions of, the Uniform Child Custody Jurisdiction Act (UCCJA), adopted in Vermont as 15 V.S.A. § § 1031-1051. These acts were adopted to respond to " a growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every

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year while their parents or other persons battle over their custody in the courts of several states." National Conference of Commissioners on Uniform State Laws, Uniform Child Custody Jurisdiction Act, Prefatory Note (1968). The PKPA embodies preferences " to leave jurisdiction in the state which rendered the original decree[,] . . . to promote the best interests of the child[,] . . . [and to] discourage[] interstate abduction and other unilateral removals of children for the purpose of obtaining [180 Vt. 448] a favorable custody decree." Michalik v. Michalik, 172 Wis.2d 640, 494 N.W.2d 391, 398 (Wis. 1993).

[¶12] The PKPA applies equally to a visitation determination, requiring states to enforce " any custody determination or visitation determination made consistently with the provisions of this section by a court of another State." 28 U.S.C. § 1738A(a). Because the first custody and visitation determination with respect to IMJ was made by the Vermont court, we must first examine whether that court exercised jurisdiction " consistently with the provisions of" the PKPA. Id. If it did, and if it continued to...

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