Activist judge put in his place

At least partially. It’s a start.

Frederick County Circuit Court Judge John Prosser ruled in October 2004 that “the public policy of Virginia” required him to ignore the prior custody ruling of a Vermont court with respect to the parental rights of Janet Miller-Jenkins, whose civil union with former partner Lisa Miller-Jenkins was dissolved in 2003. Judge Prosser, in declaring Lisa the sole parent of the couple’s daughter Isabella, cited the newly enacted “Affirmation of Marriage Act” (HB 751) in his decision, stating that such interference with family relationships was precisely what the new law was intended to do.

That ruling was just vacated by the Virginia Court of Appeals, with instructions to grant “full faith and credit” to the orders of the Vermont court which has jurisdiction in this case.

While this new ruling overturns the activist one excoriated here, it is very narrowly drawn and does not address the scope or constitutionality of the “public policy of Virginia” that would deny same sex couples any of the incidents of civil union or marriage. It only addresses the question of jurisdiction, which is controlled by the federal Parental Kidnapping Prevention Act (PKPA), and has bupkus to do with marital status.

That was never – or shouldn’t have been – a matter of controversy. As the Court of Appeals states, the meanings of both the PKPA and the federal Defense of Marriage Act are perfectly clear. Furthermore, in case that statement does not speak for itself:

The plain, obvious and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.

This is true – unless you inhabit the curious, narrow and strained universe of those who like to rant about “judicial activism” while simultaneously creating it.

“Ordinarily there would be no question that Vermont would retain jurisdiction in a case like this,” said ACLU of Virginia executive director Kent Willis. “There was no reason, other than bias against Vermont’s recognition of civil unions, for the Virginia courts to try to take over this case.”

No kidding. The filing of this case in a Virginia court was never anything other than an appeal to pure judicial activism. Lisa Miller-Jenkins filed her case on July 1, 2004 – the very same day that the “Affirmation of Marriage Act” went into effect. She was prodded to do so by “Liberty Counsel,” one of several similar activist groups that exist for the sole purpose of generating anti-gay case law. Delegate Bob Marshall, the patron of the “Affirmation of Marriage Act,” boasted during a recent debate that his intention with this legislation was to encourage the filing of test cases to generate just such judicial activism. “That’s why I introduced the bill,” he said.

Despite Mr. Marshall’s wishes, the court finds that “this case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont.” We suppose he will be on the hunt for another test case with which to impose his agenda, this time relying on an activist judge to find his narrow ideas about families in the words of the amendment that bears his name.

Meanwhile, the Miller-Jenkins case is likely headed for the Virginia, and possibly the U.S. Supreme Court. Perhaps more of those reclusive Virginia activist judges will come out from where they’ve been hiding. We’ll be watching.

Other posts on this case:

Volokh Conspiracy
Rick Sincere
SW Virginia Law Blog
Change Is Not Reform

Equality Virginia press release:


(Richmond) — Today Equality Virginia Education Fund applauded the Virginia Court of Appeal’s unanimous decision that a lower court did not have authority to exercise jurisdiction in a Vermont custody case between Janet Jenkins and Lisa Miller, which had already been pending in Vermont family Court.

The Court of Appeals ruled that a federal law, the Parental Kidnapping Prevention Act (PKPA), clearly prohibited Virginia Courts from exercising jurisdiction over a custody case already underway in a Vermont court. The Court ruled that “the [Virginia] trial court erred in failing to recognize that the PKPA barred [the trial court’s] exercise of jurisdiction. Accordingly we vacate the orders of the trial court and remand this case with instruction to grant full faith and credit to the custody and visitation orders of the Vermont court.”

“This is absolutely wonderful news for Janet and her daughter,” said Joseph Price, lead Virginia counsel for Janet Jenkins and an Equality Virginia Education Fund Board Member. “We are ecstatic that the Court of Appeals””agreeing with the Vermont Supreme Court””has unequivocally ruled that the Virginia trial court did not have jurisdiction to interfere with an ongoing custody case in Vermont. This is a victory for parents and children everywhere. No parent has a right to take a child and go to another state in hopes of getting a second custody decision that they like better. Today the Court of Appeals of Virginia reaffirmed this fundamental principle and made clear that the law applies equally to all parents””gay or straight.”

“This was a pretty clear cut case legally with such strong federal laws on the books preventing ‘forum shopping’ in custody disputes, and the unanimous decision by the Court of Appeals reflects that,” said Dyana Mason, Equality Virginia Education Fund Executive Director. “It is important to see the Virginia Court of Appeals recognize what gay men and lesbians have always known, that our commitments and our families are no different from those of any other family and that gay and lesbian families should and must be treated equally under the law.”

Equality Virginia Education Fund was co-counsel on this case and will continue to participate in the event of an appeal to the Virginia Supreme Court.

Case Background

Janet Jenkins appealed a Virginia trial court’s exercise of jurisdiction over a child custody case and its refusal to enforce a prior custody order of a Vermont court.

Janet Jenkins and Lisa Miller lived in Virginia in a lesbian relationship from February 1998 to July 2002. In December 2000, they traveled to Vermont and entered into a civil union. After entering into the civil union, they returned to Virginia where they decided to have a child together through artificial insemination. The child, Isabella, was carried by Lisa Miller-Jenkins and was born in April 2002. In July 2002, the couple moved to Vermont, a state the couple thought would be more welcoming to a gay family.

After living in Vermont for more than a year, Lisa and Janet separated. Lisa chose to move back to Virginia and over Janet’s objections, took Isabella with her. In November 2003, Lisa sought to have the civil union dissolved in family court in Vermont, requesting that Janet be awarded suitable parent/child contact and also requesting that Janet pay Lisa child support. In June 2004, a temporary order was granted, awarding Janet liberal visitation rights with her daughter.

Unhappy with this decision, Lisa refused to comply with the Vermont court’s order and on July 1, 2004″”the same day that Virginia’s so-called “Marriage Affirmation Act” became law””filed suit in a Virginia court asking that the court rule that Lisa was the sole parent of Isabella and that Janet had no legal rights to her whatsoever. Joseph Price, a partner with the Washington, D.C. law firm of Arent Fox PLLC argued on behalf of Janet that the Virginia court had no jurisdiction over the matter under the federal Parental Kidnapping Prevention Act (“PKPA”) and Virginia’s Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), both of which give exclusive and continuing jurisdiction to the first court to address the custody, visitation or support of a minor child.

The Virginia court ignored both laws, ruling that under Virginia’s Marriage Affirmation Act Janet and Lisa’s Vermont Civil Union was “null and void” in Virginia and therefore, that Janet was””at best””Lisa’s “friend” and had absolutely no parental rights to Isabella. The Vermont court responded, holding Lisa in contempt for refusing to comply with its order and issued an order stating that the Virginia court’s exercise of jurisdiction was not in accordance with either the PKPA or the UCCJEA. Lisa appealed to the Vermont Supreme Court.

Simultaneously, Janet appealed the Virginia Court’s decision o the Court of Appeals of Virginia. Both cases were argued in September 2005. During the hearing before the Court of Appeals of Virginia, Mr. Price argued that neither the federal Defense of Marriage Act (“DOMA”) nor the Virginia Marriage Affirmation Act were intended to disrupt Congress’s carefully constructed jurisdictional hierarchy for child-custody/visitation/support matters and that to permit this would be to allow forum shopping of just the type the PKPA was meant to preclude and that Lisa was clearly pursuing. The Court of Appeals stayed the Virginia case pending decision by the Vermont Supreme Court.

On August 4, 2006, the Vermont Supreme Court unanimously ruled in favor of Janet, holding that under both the PKPA and the UCCJEA, Vermont courts, not Virginia courts, have exclusive and continuing jurisdiction in the custody dispute over Isabella. The unanimous decision also held””for the first time””that because Isabella was born into a Vermont civil union, both her biological and non-biological parent had equal parental rights.

Janet now hopes that the decision of the Court of Appeals of Virginia will enable her to reunite with her daughter who she has improperly and unlawfully been prevented from seeing for more than two years.

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3 Responses to Activist judge put in his place

  1. Jack says:

    I told you it would be overturned.

  2. All I know is that I feel sorry for Isabella, she seems to be forgotten in all of this. All this proves is that divorce
    hurts the child no matter who the parents are. The last thing this child needs is for this to be so public. What the hell
    are the adults in her life thinking?

    On another subject, I would like to have your opinion on this post:

  3. David says:

    Jack, I’m glad we agree on this.

    From the discussion on The Volokh Conspiracy: “The fact that the rights were given to a former lesbian partner is just a red herring here.”

    That’s the problem for activists like Marshall and “Liberty Counsel,” they want to create and maintain a class of people who are not entitled to equal treatment under the law. They argue that the law designed to protect children from being kidnapped should have an exception to it so Virginia can express its particular animus for GLBT parents. That “divorce hurts a child no matter who the parents are” is exactly what Virginia doesn’t want to have to acknowledge, because they want so much for it to matter who the parents are.

    If the activists have their way, the Marshall/Newman amendment will be interpreted like this, as broadly as possible, and more children will be in this position. Even worse than this being public (it was planned that way, as Mr. Marshall will tell you) is that Isabella and Janet haven’t seen each other for two years and they can never get that back.

    Let’s hope that this case shows what’s wrong with that and stops the activists from using the amendment before it starts (that includes citing it to further restrict the rights and freedoms of GLBT people through legislation). Given statements that this is exactly what HB 751 was intended to do, however, I’m not so hopeful.

    Has anyone seen comment from Mr. Marshall on this ruling? I’m curious to know what he would be comfortable saying about it.