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. 

Sirney v. Sirney: CHILD CUSTODY – BEST INTERESTS – DECLINE IN VISITATION AND COMMUNICATION – HOMOSEXUAL PARENTS – NEW ADULT RELATIONSHIPS.

When deterioration of a parent-child relationship is cited as the reason for a custody decision pushing that parent even farther out of the child’s life, does it matter if the degradation of the relationship is in significant part attributable to the parent who benefits by the change?  Maybe so, maybe not, as all custody cases are indisputably fact-tied and individually different.  With that said, an unpublished case called Sirney v. Sirney, 22 VLW 1011 (12/27/07) is enormously instructive.  To sum up with brutal brevity, the trial court held that the mother, living on the opposite end of the country, had other distractions and failed to “put her children first.” 

Martin v. Ziherl: Va. court decriminalizes fornication

Case summary by John Crouch

CRIMINAL LAW — CONSTITUTIONAL LAW —  FORNICATION AND POSSIBLY ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S. Supreme Court decriminalizing sodomy.  607 S.E.2d 367 (1/14/05, 31 FLR 1137).  The ruling did not come in a criminal prosecution, so the state was not involved.  This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the plaintiff could not recover because she had been engaged in the crime of fornication at the time the injury occurred, and in fact the injury was caused by her commission of that crime.

SEPARATION AGREEMENTS – INTERPRETATION – CONTRACTUAL ALIMONY – COHABITATION CLAUSES – HOMOSEXUAL COHABITATION.

A Fairfax judge’s refusal to apply the cohabitation-cutoff clause of an agreement to end an ex-wife’s contractual alimony on grounds of her homosexual cohabitation was reversed by the Court of Appeals in Stroud v. Stroud, ___ Va. App. ___, ___ S.E.2d ___, (2/27/07). The case turned on disputes over whether the evidence showed a situation analogous to marriage, and whether, by law, a homosexual cohabitation can ever be analogous to marriage. The case was somewhat unusual in that extensive testimony and other evidence showed clearly that the homosexual couple did everything that married people do, and in addition were deeply and loudly in love and proud of it – but freely admitted that they were denying their relationship in the litigation in order to avoid alimony cutoff, and perhaps job discrimination. (One was a school teacher).

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)

ADOPTION – NEW BIRTH CERTIFICATE – HOMOSEXUAL PARENTS.

In Davenport v. Little-Bowser, ___ Va. ___, 611 S.E.2d 366, 19 VLW 1240 (4/22/05), the Virginia Supreme Court held that the State’s Registrar of Vital Records & Health Statistics could not lawfully refuse to issue a new birth certificate to a same-sex couple who had already been allowed to adopt a child as the “adoptive parents.”