Virginia Family Law Appeals

Miller-Jenkins v. Miller-Jenkins: INTERSTATE CUSTODY JURISDICTION – PKPA – HOMOSEXUAL CIVIL UNIONS.

The much-publicized dispute between two lesbians joined in a Vermont civil union, over the child one of them bore by artificial insemination, was decided by the Virginia Court of Appeals in an opinion that is economical, straightforward, focused and direct, which concentrates on the PKPA issue.  In Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 87, 637 SE2d 330,  21 VLW 746 (11/28/06), the appellate court reversed the trial court determination that one woman was the sole parent because that Virginia trial court lacked child custody jurisdiction under the federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A, and was required to accord full faith and credit to the Vermont custody decision giving one woman custody and the other visitation. 

Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 87, 637 SE2d 330, 21 VLW 746 (11/28/06)

INTERSTATE CUSTODY JURISDICTION – PKPA – HOMOSEXUAL CIVIL UNIONS.  The much-publicized dispute between two lesbians joined in a Vermont civil union, over the child one of them bore by artificial insemination, was decided by the Virginia Court of Appeals in an opinion that is economical, straightforward, focused and direct, which concentrates on the PKPA issue.  The appellate court reversed the trial court determination that one woman was the sole parent because that Virginia trial court lacked child custody jurisdiction under the federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A, and was required to accord full faith and credit to the Vermont custody decision giving one woman custody and the other visitation.

NOTE: IN SEPTEMBER 2007, THE VIRGINIA SUPREME COURT AGREED TO REVIEW THIS DECISION.

Swalef v. Anderson: UCCJEA — CUSTODY — INTERSTATE — TRIBAL COURTS — CONTINUING JURISDICTION — FORUM NON CONVENIENS (DEFER AND DECLINE) — APPEALS — SELECTIVE APPELLATE REVIEW.

Taking a very practical approach to an appealed UCCJEA case involving Indian tribal courts in Minnesota, the Court of Appeals declines to review the validity of the Norfolk Circuit Court’s discretionary decision to decline and defer exercise of child custody jurisdiction over a child then in Minnesota, because whether or not this Virginia court had jurisdiction, its decision to defer the case to the Minnesota Tribal Court was authorized and correct.

CHILD CUSTODY – INTERSTATE – UCCJEA – HOME STATE – “PERSON ACTING AS A PARENT” – LORD MANSFIELD FATHERS.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) meets Lord Mansfield’s rule in an important holding by the Virginia Court of Appeals in O’Rourke v. Vuturo, 638 S.E.2d 124, 49 Va.App. 139 (12/19/06). In a very common old story, a pregnant mother had disclosed to her husband before the birth that not he, but a paramour, was the father, but they decided she should have the child and they should raise the child as their own, and the husband’s name was on the birth certificate.