Child custody disputes are almost always contentious and painful — but when it involves different states that don’t even legally agree on what constitutes a family, it gets really nasty …
Judges in Vermont and Virginia have different ideas about what is best for Isabella Miller-Jenkins, 3, born to a woman who had a civil union with another woman in Vermont. The relationship ended two years ago. Now each woman says Isabella is her daughter, with one asserting exclusive motherhood.
The judge in Vermont ruled that the women should “be treated no differently than a husband and wife.” He established a visiting schedule and held the biological mother, Lisa Miller, in contempt of court when she failed to comply with it.
The judge in Virginia ruled that Ms. Miller had the sole right to decide who could see the child. He ruled that the former partner, Janet Miller-Jenkins, had no “parentage or visitation rights.”
[…] The cases involve the interaction of two sets of laws. At the state level, Vermont and Virginia have laws that say the first court to take jurisdiction of a custody case should make the final determination. That would seem to help Ms. Miller-Jenkins here.
In November 2003, it was Ms. Miller, the Virginian, who filed papers in Vermont to dissolve the union. In them, Ms. Miller acknowledged that Isabella was a child of the union and asked the court to allow her former partner to have contact with the girl. Her lawyers have since taken varying positions. Ms. Miller now says she was confused and did not mean to acknowledge any parental relationship between her former partner and Isabella.
A 2004 Virginia law, the Marriage Affirmation Act, makes same-sex unions from other states “void in all respects in Virginia.” Judge John R. Prosser, of Frederick County Circuit Court in Winchester, Va., relied on that law in October in granting sole custody of Isabella to Ms. Miller.
Two potentially conflicting federal laws add to the confusion. The Parental Kidnapping Prevention Act largely tracks the state custody laws and requires other states to defer to the first courts to hear such cases. But the federal Defense of Marriage Act says states need not give effect to same-sex unions.