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. 

Florio v. Clark: CUSTODY – THIRD PARTIES – MERE “BEST INTERESTS” STANDARD.

.  In Florio v. Clark, 22 VLW 679 (10/30/07), one of those unpublished opinions that has a dissent, and one which has now had rehearing granted on 12/4/07, the Court of Appeals majority appeared to have forgotten entirely that you can’t give away people’s children and award them to somebody better just because it might be in the child’s best interests. 

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.

CUSTODY — AWARD TO GRANDPARENTS IN ABUSE/NEGLECT CASES — FOSTER CARE STATUTES AND CUSTODY STATUTES.

  In the vast body of overlapping laws that concern taking children away from their families the Court of Appeals sometimes gets surprisingly independent and issues some remarkable opinions.  One which points up the very real and important issues of statutory interpretation, and produces real differences of opinion on the Court, is Lynchburg DSS v. Cook, ___ Va. App. ___, ___ S.E.2d ___, 22 VLW 322 (en banc, 8/14/07).  Here the en banc Court reversed the panel opinion that had sided with DSS, and reinstated the holding of the trial court.  That holding had awarded custody to the grandparents of a child that the DSS had seized from the parents due to allegations against the father and placed in foster care.

FUNDAMENTAL PARENTAL RIGHTS — VISITATION.

Williams & Williams v. Williams & Williams,  24 Va. App. 778, 485 SE2d 651, 12 VLW 8 (6/9/97).
A ringing declaration of fundamental parental rights comes from the Virginia Court of Appeals.  In a case where both the mother and the father wanted to deny visitation to the child’s grandparents, it is their fundamental right of parental autonomy that requires that the parents’  preference on this matter ought to be treated as the last word and given the force of the law.

CUSTODY — MODIFICATION — RE-LOCATION — THIRD PARTY CUS-TODY — BURDEN OF PROOF AFTER PRIOR CUSTODY ORDER — JUVENILE APPEALS TO CIRCUIT – NO NOTICE.

When a mother who had married a man after the actual father was long out of the picture and thus made him a stepfather, and then entered into a shared custody arrangement with him when their marriage broke up, she could no longer rely with confidence on his non-parent status as an unrelated third party, the Court of Appeals ex-plained in Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865, 20 VLW 37 (6/7/05). After going along with the shared custody arrangement for a while, the mother decided she wanted to move away, and thus filed in juvenile court for a modification of the consent custody decree.

VISITATION – THIRD PARTIES – STANDING –BOY FRIEND OF MOTHER – “ACTUAL HARM” STANDARD – RELOCATION – FEES ON APPEAL.

In one of the most tenuous third-party standing cases yet, the Court of Appeals found standing for a boy friend of the mother, who was the father of her daughter but was suing for visitation with her son, who had a different father. The Court of Appeals found him a “person with a legitimate interest” under §20-124.1, since, although neither a blood relative or step parent nor a former stepparent nor a “family member,” he had acted as a father to the boy for some four years and was closer than many stepfathers are. But because he did not establish “actual harm” that the boy would suffer without visitation from him, the denial of visitation was affirmed. Also affirmed was the decision letting the mother move the child to Florida, but the mother’s request for fees on appeal was denied. Surles v. Mayer, ___ Va. App. ___, ___ S.E.2d ___, 40 VLW 1176 (4/25/06).

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.

The Bottoms cases

Reviews of Bottoms v. Bottoms, 12 VLW 262 (Va. Ct. App. 7/29/97) and Bottoms v. Bottoms, 14 VLW 257 (Va. Ct. App. 6/29/99)

GRANDPARENT VISITATION

The grandparent (person with legitimate interest) visitation statute, Code §20-124.2, is constitutional, and controls an issue of grandparent visitation when only one parent objects, the Court of Appeals explained in Dotson v. Hylton, ____ Va. App. ____, ___ S.E.2d ___, 13 VLW 1430 (5/4/99).Williams & Williams v. Williams & Williams , 256 Va. 19 (1998), doesn’t control at all, because it applies only when both fit natural parents in an intact family object. When they don’t, the grandparent who wants visitation has only to show best interest of the child, not compelling state interest, “detriment to the child,” etc. The visitation order upheld in this case was for the mother of a father who had been sentenced to ten years in prison.