When Homo's find God.

[AtlasShrieked]

The lawyer who who wrote the commentary I quote and link to ---{I will explain below.} --- titled her Piece:

The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This ​

I would've titled it:

When Christian Homos break their sacred marriage vows and the law: Either all marriage vows are sacred or they are not because marriage is a sacred institution.​

Lisa and Janet Miller-Jenkins were involved in a committed same-sex relationship beginning in the late 1990s. Though they were residents of Virginia, they traveled, like hundreds of other out-of-state couples, to Vermont to enter in a civil union, not long after Vermont began to recognize a marriage-equivalent status for same-sex couples. After the ceremony, the couple returned to Virginia, where they planned to bring a child into the relationship.

Lisa was inseminated with sperm from an anonymous donor, and in April 2002, she gave birth to IMJ. Janet was a true co-parent, involved in every aspect of IMJ’s arrival. For instance, she helped select the sperm donor and was present in the delivery room. Shortly after IMJ was born, the couple moved to Vermont, where they resided for thirteen months before ending their relationship.

When IMJ was just one year old, the couple broke up. (Lisa told reporters later that she “left the homosexual lifestyle and drew closer to God.”) In September 2003, Lisa returned to Virginia with IMJ, while Janet remained in Vermont. Eventually, Lisa filed a petition to dissolve the couple’s civil union in Vermont family court, listing IMJ as the “biological or adoptive child[] of the civil union.”

The Vermont court dissolved the civil union, found both Lisa and Janet to be IMJ’s legal parents, and awarded Lisa temporary custody, and Janet in-person and telephonic visitation rights. (Since the two women became residents of Vermont, dissolving the civil union was not the battle that – as I explained in a prior column -- it has become for other non-resident same-sex couples.)

However, Lisa permitted Janet to visit with IMJ only once pursuant to this ruling, in June 2004. Shortly after that visit, Lisa filed a petition in a Virginia court seeking a ruling that would deny any parent-child relationship between Janet and IMJ. The circuit court in Virginia ruled that Lisa was IMJ’s sole legal parent, and that Janet had no parental rights.

A series of conflicting rulings then emerged from both Virginia and Vermont courts. Lisa was represented by Liberty Counsel, a public interest law firm that defends “traditional” marriage, while Janet was represented by Gay and Lesbian Advocates and Defenders (GLAD), the non-profit group that successfully litigated for same-sex marriage in Massachusetts.

Ultimately, Vermont, and Janet, won – for reasons I will explain below.

...read the commentary on the case and then see if you can make a reasonable and rational argument as to why you agree or disagree with the Virginia Court.

 

[Abelian Sea]

What a mess. Poor kid.

As for the Virginia Court of Appeals ruling, it seemed a pretty straightforward application of the federal law. The child was born in Vermont to residents of Vermont, and had not long been out of Vermont, so it makes sense to me go with Vermont's custody ruling.

 

[jillian]

...read the commentary on the case and then see if you can make a reasonable and rational argument as to why you agree or disagree with the Virginia Court.

I read your synopsis, though I couldn't open the link.

It seems to me that here, the issue of the legality of the marriage wasn't before the Court. I could be wrong, but it seems that Lisa, who sued for divorce, wasn't then claiming that the marriage was void or voidable.

 

[jillian]

let me amplify... sometimes we read too quickly... lol...

IMO, the appellate court in Virginia had no jurisdiction to re-litigate the issue already determined by the Vermont Court.

 

[AtlasShrieked]

I read your synopsis, though I couldn't open the link.

It seems to me that here, the issue of the legality of the marriage wasn't before the Court. I could be wrong, but it seems that Lisa, who sued for divorce, wasn't then claiming that the marriage was void or voidable.


---


let me amplify... sometimes we read too quickly... lol...

IMO, the appellate court in Virginia had no jurisdiction to re-litigate the issue already determined by the Vermont Court.

the link?

are you legally blind too? are you color blind?

FindLaw's Writ - Grossman: The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose was attached to the words in blue: I will explain below

marriage being void or voidable? that was in vermont.

the case in Virginia was about parental rights/custody.

Why Virginia, An Anti-Same-Sex-Marriage State, Was Nevertheless Willing To Enforce Vermont’s Custody Order

State laws on same-sex marriage do not necessarily control cases involving the children of same-sex couples. In many instances, same-sex parenting issues arise without reference to any legally-recognized adult relationship. A lesbian couple might jointly adopt a child, for example, in a state that does not permit them to enter into either a marriage or a civil union. The rights of each adult with respect to the child flow from the adoption order. Or, a man may make a claim to his male partner’s child based upon a co-parenting agreement – a claim that could stand or fall without regard to whether the men were legally married. But for Janet Miller-Jenkins, her claim to IMJ arises from her civil union with Lisa. Lisa was IMJ’s biological mother, and Janet did not adopt her. Her claim to IMJ thus flowed from their civil union: IMJ was a child of the union, and thus presumptively the child of both women.

The Vermont-Virginia conflict was cemented in this case by two directly contrary rulings: Vermont’s ruling that Janet was, like Lisa, IMJ’s legal parent and entitled to visitation; and Virginia’s lower-court ruling that Lisa was the sole legal parent.

Interstate custody battles are not an uncommon occurrence. Custody law and the law of parentage (that is, the law concerning who constitutes a “legal” parent to a particular child and has right or obligations associated with that status) are governed by the law in individual states. Custody disputes may thus be governed by very different standards in one state than another. However, to avoid competing and conflicting rulings, and the possibility of continuous relitigation of custody matters, Congress has adopted a series of federal laws to ensure that courts do, in fact, respect the rulings of courts from other states. The Parental Kidnapping Prevention Act (PKPA) is one such law: It aims to guide the determination of when one state must give “full faith and credit to” (that is, abide by) a child-custody determination of another state.

When Janet appealed the Virginia trial court’s ruling (in favor of Lisa as the sole legal parent of IMJ), she invoked the PKPA to argue that the Virginia court did not have jurisdiction to enter a custody order in this case. The Virginia Court of Appeals (an intermediate appellate court) agreed with Janet. It ruled that Virginia’s Affirmation of Marriage Act was pre-empted by the federal PKPA and that, under that Act, Vermont was entitled to exercise jurisdiction due to a number of factors: Vermont had jurisdiction under Vermont law; Vermont had been IMJ’s home state within six months before the custody and parentage proceeding was commenced; the child was removed from Vermont by one of the litigants, and the other litigant is still a Vermont resident.

Under the PKPA, then, according to the Virginia Court of Appeals, Vermont courts had the right to issue a binding ruling as to the custody and parentage of IMJ that Virginia courts were bound to honor.

The Final Battle: A Technical Ruling

Lisa appealed the Virginia Court of Appeals’ ruling to the Virginia Supreme Court, but her appeal was dismissed because it was not timely-filed. Meanwhile, Janet sought to “register” her Vermont custody order in a domestic relations court in Virginia – an act that would enable her to enforce the Vermont order in Virginia courts on an ongoing basis.

Lisa fought Janet’s attempt to register the order through three levels of courts before finally reaching, again, the Virginia Supreme Court. There, she argued that the Virginia Court of Appeals’ ruling with respect to the PKPA (and the validity of the Vermont custody order) was erroneous. Janet, on the other hand, argued that the Virginia Supreme Court should not now permit Lisa to argue the merits of the original case in this ancillary proceeding.

The Virginia Supreme Court, in a ruling earlier this month, ruled in favor of Janet. In so doing, it relied on a seldom-discussed doctrine called “the law of the case,” a judicially created doctrine is used to prevent re-litigation of issues by parties in the same case. Under this doctrine, as articulated by Virginia caselaw, when “there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal. Right or wrong, it is binding on both the trial court and the appellate court, and is not subject to re-examination by either. For the purpose of that case, though only for that case, the decision on the first appeal is the law.”

As applied to the Miller-Jenkins litigation, the doctrine means that Lisa cannot now challenge the Virginia Court of Appeals’ interpretation of the PKPA – which is what led to its deferral to the Vermont custody order -- because it is now the “law of the case”. She waived her opportunity to challenge the ruling by filing an untimely appeal the first time around. She cannot resurrect her claim by tagging it on to a separate proceeding – the fight over registering the custody order – in the same case.

A Positive Ruling, But an Idiosyncratic One: Why Virginia May Rule Very Differently in the Next Same-Sex Couple’s Custody Battle

While this latest – and hopefully last -- ruling is certainly good news for Janet, who can now commence enforcement of her long-ago established visitation order, it may mean that only she benefits from the ruling. A decision that is treated as “law of the case” is assumed to potentially be wrong and is thus not binding precedent in other cases.

Indeed, the Chief Justice of the Virginia Supreme Court concurred, but wrote separately to suggest that he believes the Court of Appeals ruling was incorrect on the merits – a concurrence that does not bode well for at least one party in the next interstate same-sex custody battle in Virginia.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

 

[jillian]

I know that was in Vermont. My point, inartfully though it may have been made, was that it was res judicata in VERMONT and Virginia had no jurisdiction to revisit it. The case apparently fell under the uniform cusody acts and couldn't then be overturned by another State once the decision was properly made in the home jurisdication. And in opening the link, which I was FINALLY able to get opened, it seems I was pretty close. ;o)

As for the link, I said I couldn't open it, not that I couldn't see it. ;o)

And no, I'm not color blind. Color blindness is generally a trait linked to the Y Chromosome and I don't have one of those. ;oP