Lisa Miller and Janet Jenkins are embroiled in a custody dispute that has worked its way up to the Virginia Supreme Court. Today’s news story has lots of particulars, but the salient ones are these:
A Vermont court dissolved the civil union between Miller and Jenkins and gave primary custody of Isabella, Miller’s biological daughter, to Miller, with Jenkins receiving visitation rights. A Virginia court then issued another order making Miller the sole parent and denying Jenkins custody and visitation rights. Jenkins appealed, and the Virginia Appeals Court overruled the lower court, based on its reading of the Parental Kidnapping Prevention Act, a federal law.
That law extends the full-faith-and-credit clause to custody decisions. This means that if a court in state A issues a custody order, then other states are obliged to acknowledge and honor that ruling. Miller’s legal counsel, however, insists that the PKPA has an enforcement exception, and besides, ““the Vermont same-sex civil union is invisible in the commonwealth of Virginia” because of the 2004 Marriage Affirmation Act and the subsequent marriage amendment.
Those with long memories or modest historical knowledge will recall the great fight over Massive Resistance. When the federal courts ordered the desegregation of the public schools, Virginia launched a program of resistance. States’-rights stalwarts such as James J. Kilpatrick insisted the Commonwealth could “interpose” itself between federal authority and the people of Virginia in order to preserve Virginia’s social structure and mores.
This case seems to be shaping up like Massive Resistance Redux.
The Family Foundation has weighed in, contending:
This is a case of parental rights, and activist courts subverting both a state’s sovereignty and the federal protections of the state’s laws and constitution.
Richard Crouch, a family-law attorney, offers a closer reading of the statutes:
But what, you say, about the effect of the federal Defense Of Marriage Act (DOMA), 28 U.S.C. §1738C? Lisa argued DOMA, but she showed the appellate court no authority that it overrides the 1980 PKPA. Numerous cases hold that if two statutes appear to conflict, it is a court’s duty to give them, if reasonably possible, such a construction as will give each of them force and effect. As the Court of Appeals reads both statutes, there is no conflict between them. DOMA does say that no state shall be required to give effect to any public act or judicial proceeding “respecting a relationship between persons of the same sex that is treated as a marriage…or right or claim arising from such relationship.” However, the intent of the PKPA, the court says, “was to extend the requirements of the Full Faith and Credit Clause to custody determinations,” while the intent of DOMA was to defend traditional marriage and to let states formulate their own public policy regarding same-sex unions. In addition, the court finds that Lisa pretty much waived her objections to Vermont’s exercise of jurisdiction when she filed the civil-union-dissolution proceeding there, asking for custody and visitation relief.
Note that last sentence. Does that place Miller in a catch-22?
Reader Comments:
“To Utah with a polygamist cult”
Better yet…move to Michigan and convert to Islam. Then the state will pay to send the kids to the local state funded madrasa and liberals like bob won’t say a thing because they’re hypocrites stuck in 1969 and scared to death of muslims.
Meanwhile, in New Mexico…a photographer has been fined $6000 + dollars for refusing to photograh a lesbo wedding by the monkey Human Rights Commission in that state.
Be it known. You WILL write what you are told, draw what you are told, and provide contractual service to who you are told.
And they wonder why I could give a——- about gay rights.
I don’t know about the analogy to Massive Resistance; there’s one large difference. M.R. was in defiance of a monumental court decision (Brown) and was going against the current of a movement that had a lot of nationwide momentum.
The homosexual marriage folks—all 5 of them—don’t have the forward drive that civil rights folks had behind them. By comparison, its still a minor movement. In fact, I never hear anything about it.
But, if the point is that Virginia might become the legal fighting ground then, yes, that would definitely be interesting. Virginia: Where homosexuals earned the right to marry. Virginia is for Lovers.
Apparently the last post can not read well. Not even close to the facts of the case.
There is another legal angle to it.
The doctrimne of best intrests of the child. The Courts in Va have ruled in the case of step parents,grandparents,ect
that visitation can be allowed to non-custodial, non-biological people in the childs life if there has been some sort of significcant bonding. The Vermont court ruled that the non-bio female was in effect a parent and more than likely Virginia will defer to the Vermont court while following its own precedents.
Plus the courts would to discourage forum shopping in divorce cases going from state to state.
The weirdest part is that the Biological mother has found Jesus, renounced Lesbianism as a sin. As Church Lady used to say on Saturday Night Live “How convienent.”
Liberty Baptist has announced that the non-Bio parent is going to use the case as a “trophy for the Homosexual agenda. “
It sounds to me as if Falwell, Jr. and company are using this woman and the Child as a trophy in the Looney Christian Agenda.
The Bio Mother is really pathetic. A lesbian once who entered into a relationship,voluntarily entered a Civil Union with the woman and then fled to a conservative state like Virginia to get away from her choices. Then hides not only in Virginia but takes up with the likes of the Falwellites in so called Liberty University.
What is her next move ? To Utah with a polygamist cult ?
Why don’t they move to Vermont? Why stay in a common sense state such as Virginia? Aren’t there more important things to worry about than two lesbians arguing?
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