Miller-Jenkins v. Miller-Jenkins, Record No. 070933.

CourtSupreme Court of Virginia
Citation276 Va. 19,661 S.E.2d 822
Docket NumberRecord No. 070933.
Decision Date06 June 2008
661 S.E.2d 822
276 Va. 19
Record No. 070933.
Supreme Court of Virginia.
June 6, 2008.

[661 S.E.2d 823]

Mathew D. Staver, Orlando, FL (Rena M. Lindevaldsen, Longwood, FL; Liberty Counsel, Orlando, FL, on briefs), for appellant,

Joseph R. Price, Washington, DC (Gregory R. Nevins; Rebecca Glenberg, Richmond; Arent Fox, Washington, DC; Lambda Legal Defense & Educ. Fund, Inc.; American Civil Liberties of Virginia Foundation, Richmond, on brief), for appellee.

Amicus Curiae: Com. of VA (Robert F. McDonnell, Atty. Gen.: William E. Thro, State Sol. Gen.; Stephen R. McCullough, Deputy State Sol. Gen.; William C. Mims, Chief Deputy Atty. Gen.; David E. Johnson, Deputy Atty. Gen.; Matthew M. Cobb, Asst. Atty. Gen., on brief), in support of appellant.

Amicus Curiae: American Center of Law and Justice (Vincent P. McCarthy; Kristina

[661 S.E.2d 824]

J. Wenberg; Erik M. Zimmerman; Benjamin P. Sisney, on brief), in support of appellant.

Amicus Curiae: National Legal Foundation (Steven W. Fitschen; Barry C. Hodge, on brief), in support of appellant.

Amicus Curiae: Michael A. Cox, Atty. Gen. of the State of Michigan (Henry J. Boynton, Asst. Sol. Gen.; Alison P. Landry, Senior Asst. Atty. Gen., on brief), in support of appellant.

Amici Curiae: Nat. Ass'n of Counsel for Children; Virginia Chapter of the Nat. Ass'n of Social Workers; Virginia Women Attys. Ass'n; Virginia Nat. Organization for Women; Virginia Organizing Project; Professor Joan H. Hollinger (Thomas M. Wolf; Megan A. Scanlon; LeClair Ryan, on brief), in support of appellee.

Present: All the Justices.


In this appeal, we consider whether the Court of Appeals erred in directing a circuit court to register a custody and visitation order rendered by a Vermont court, based on the Court of Appeals' previous holding in the same custody and visitation dispute that the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2000 & Supp. V 2005), requires that the courts of this Commonwealth give full faith and credit to the Vermont order.

In 2000, Lisa Miller-Jenkins (Lisa) and Janet Miller-Jenkins (Janet) entered into a civil union (the civil union) in Vermont that was permitted under Vermont law.1 Lisa and Janet decided that Lisa would bear a child, and in April 2002, after successful artificial insemination, Lisa gave birth to IMJ2 in Virginia. Lisa, Janet, and IMJ lived together in Virginia until July 2002, when they moved to Vermont, where they lived until September 2003. At that time, Lisa and IMJ returned permanently to Virginia over Janet's objection.

In November 2003, Lisa filed a petition in a Vermont family court (the Vermont court), seeking to dissolve the civil union and to gain custody of IMJ. The Vermont court dissolved the civil union and entered a custody and visitation order (the Vermont custody order) granting temporary custody of IMJ to Lisa and temporary visitation rights to Janet. After initially allowing Janet to visit IMJ in June, Lisa thereafter refused to permit Janet to have contact with IMJ as required by the terms of the Vermont custody order.

On July 1, 2004, Lisa filed a petition in the Frederick County Circuit Court (the circuit court), asking the circuit court to determine that Lisa was IMJ's "sole parent" and seeking sole custody of IMJ. On July 7, 2004, Janet filed a motion in the Vermont court seeking enforcement of the Vermont custody order and a determination that Lisa was in contempt of that court for her failure to abide by the terms of the Vermont custody order. On July 19, 2004, the Vermont court entered an order holding that the Vermont court had continuing jurisdiction over all custody matters in the case, and that the Vermont court would not defer to an order entered by a court in another state purporting to resolve the issue of custody.

In August 2004, the circuit court entered an order temporarily awarding sole custody of IMJ to Lisa and ordered that IMJ not be removed from Virginia (the Virginia custody order). Because the Vermont custody order included a provision granting Janet scheduled visitation with IMJ in Vermont, the Virginia custody order was in direct conflict with the Vermont custody order. In September 2004, the Vermont court issued an order holding Lisa in contempt for violating the terms of the Vermont custody order.

In October 2004, the circuit court concluded that it had jurisdiction over the custody dispute and entered an order awarding sole custody to Lisa, holding that Janet did not have any parental rights, and that Lisa was IMJ's "sole" parent. In November 2004, the Vermont court issued a contrary order holding

661 S.E.2d 825

that Lisa and Janet were both "parents" of IMJ.

In January 2005, Janet appealed the Virginia custody order to the Court of Appeals (the first Virginia appeal). See Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88, 637 S.E.2d 330 (2006). In November 2006, the Court of Appeals reversed the circuit court's judgment entering the Virginia custody order, holding that the circuit court did not have jurisdiction to enter the order because the dispute was a "custody and visitation determination" subject to the provisions of the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2000 & Supp. V 2005) (the PKPA), which accorded Vermont sole jurisdiction over the custody and visitation dispute. Id. at 103, 637 S.E.2d at 337-38. The Court of Appeals concluded that the provisions of the Defense of Marriage Act, 28 U.S.C. § 1738C (2000 & Supp. V 2005) (the DOMA), did not alter the applicability of the PKPA to the custody and visitation dispute, and that the PKPA preempted all state law to the contrary, including Code § 20-45.3 (the Marriage Affirmation Act). Id. at 102-03, 637 S.E.2d at 337.

The Court of Appeals further held in the first Virginia appeal that Vermont law governed the parties' dispute, and that the courts of Virginia were bound by Vermont's interpretation of its own law. Id. at 96-97, 637 S.E.2d at 334-35. Accordingly, based on its holding that Vermont had sole jurisdiction over the case, the Court of Appeals declined to address the issue whether the civil union would have been recognized under Virginia law. Id. at 103, 637 S.E.2d at 337-38.

Following the Court of Appeals' entry of judgment in the first Virginia appeal, Lisa filed a petition for appeal to this Court. We dismissed Lisa's petition because she failed to file a notice of appeal. Miller-Jenkins v. Miller-Jenkins, Record No. 070355 (May 7, 2007).

Meanwhile, in March 2005, Janet sought to register the Vermont custody order in the Juvenile and Domestic Relations District Court of Frederick County (the juvenile and domestic...

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