Lesbian partners’ parental rights back before Supreme Court

The Supreme Court of Virginia may yet reach the merits of the effort of a lesbian mother to sever the parental rights of her former partner.

“May” because attorneys for the partner, Janet Jenkins, contend that Virginia law bars consideration of issues in a second Virginia appeal that already were determined in an earlier appeal.

That appeal was to the Virginia Court of Appeals, which ruled in November that Vermont had jurisdiction over issues of custody and visitation for Isabella, the daughter of Lisa Miller who was conceived by artificial insemination. Miller failed to file a proper notice of appeal to the Supreme Court, and the high court refused to consider the case.

While the first appeal was before the court of appeals, Frederick County Circuit Judge John R. Prosser refused to register the Vermont order on the parental rights and responsibilities of Jenkins and Miller. A second court of appeals decision reversed that ruling in light of the court’s holding in the first appeal.

In her petition for appeal to Supreme Court on the validity of the Vermont order, Miller repeats many of the arguments she made in the petition that the Supreme Court dismissed on procedural grounds.

Not so fast, Jenkins responded in her brief in opposition. Because those issues already were decided on appeal, they became the law of the case and cannot be reviewed by the Supreme Court, she contends. The Supreme Court agreed on Sept. 12 to hear the case, Record No. 070933.

In essence, Jenkins contends that the federal Defense of Marriage Act and the Virginia public policy against recognition of gay marriage or civil unions prevent Virginia courts from giving full faith and credit to the Vermont decisions in the case.

AG’s brief not persuasive in lesbian case

Virginia Solicitor General William E. Thro unsuccessfully asserted the sovereignty of the commonwealth in urging the U.S. Supreme Court to hear the appeal of a lesbian mother who is attempting to sever the parental rights of her former partner.

In an amicus brief in the case of Miller-Jenkins v. Miller-Jenkins, Record No. 06-1110, Thro cited four reasons the high court should hear the case: to reaffirm the sovereign power of the states over domestic relations, to reaffirm the public policy exception to the Full Faith and Credit Clause, to reaffirm the limits on congressional power to enforce the Constitution, and to provide guidance on the application of the Parental Kidnapping Prevention Act in the context of same-sex unions.

The couple left Virginia to get a civil union in Vermont in 2000. Lisa Jenkins-Miller was artificially inseminated in Virginia, and the couple moved to Vermont for a time before they separated and Lisa Jenkins-Miller returned to Virginia. She filed in Vermont to have the union dissolved and courts there awarded Janet Jenkins-Miller visitation rights.

Lisa then filed suit in Virginia to have the Vermont order invalidated as contrary to Virginia’s public policy against same-sex unions and adoptions. The Virginia Court of Appeals ruled that Vermont had jurisdiction over the custody case and that the parental kidnapping act controlled. That ruling is on appeal to the Virginia Supreme Court.

On Monday, the U.S. Supreme Court rejected the appeal from Vermont with no further comment.