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.
As most family lawyers know by now, Janet and Lisa, now both surnamed Miller-Jenkins, left Virginia for Vermont so that they could be joined in a civil union under that state’s statutory laws. After they returned, Lisa got artificially inseminated and gave birth to the child “IMJ,” but then they all moved back to Vermont and ended their relationship with a Vermont “civil union dissolution,” which included the custody order. The mother came on back to Virginia with the child, and filed in the Frederick County, Virginia Circuit Court a §20-45.3 “Petition to Establish Parentage and For Declaratory Relief,” which that court granted, holding that the Virginia Marriage Affirmation Act, §20-45.3, required non-recognizing the effects of a foreign state’s civil union law, and therefore required acknowledging but one mother, and granting the sole-parentage/sole-custody order. However, a unanimous Court of Appeals panel agreed with the aggrieved civil unionist that the PKPA precluded the circuit court in Winchester from making that sole-parent order because of the “pending” prohibition and the exclusive-continuing-jurisdiction provision of the PKPA. Subsection (g) of 28 U.S.C. §1738A says that no state of the USA shall exercise jurisdiction in any custody or visitation proceeding while another state is validly exercising custody or visitation jurisdiction. Which Vermont clearly was under the home state provision of the PKPA (subsection (c)(2)(A)(ii)), because the child had resided there with a parent during the past six months, and the other party continued to live in Vermont, after the first party removed the child. PKPA subsection (h) is the exclusive-continuing-jurisdiction section, and it provides that a state continues to have jurisdiction, and no other state can modify a custody or visitation determination made by the state, unless and until all parties and the child have moved away. Thus a Virginia court had no business hearing the case, or modifying the Vermont order. In fact, Lisa had moved away to Virginia shortly after filing her case in Vermont, and what the Vermont court had issued was a temporary custody and visitation order. The case was still pending for a number of reasons. But what, you say, about the effect of the federal Defense Of Marriage Act (DOMA), 28 U.S.C. §1738C? Lisa argued DOMA, but she showed the appellate court no authority that it overrides the 1980 PKPA. Numerous cases hold that if two statutes appear to conflict, it is a court’s duty to give them, if reasonably possible, such a construction as will give each of them force and effect. As the Court of Appeals reads both statutes, there is no conflict between them. DOMA does say that no state shall be required to give effect to any public act or judicial proceeding “respecting a relationship between persons of the same sex that is treated as a marriage...or right or claim arising from such relationship.” However, the intent of the PKPA, the court says, “was to extend the requirements of the Full Faith and Credit Clause to custody determinations,” while the intent of DOMA was to defend traditional marriage and to let states formulate their own public policy regarding same-sex unions. In addition, the court finds that Lisa pretty much waived her objections to Vermont’s exercise of jurisdiction when she filed the civil-union-dissolution proceeding there, asking for custody and visitation relief. Lisa of course also argued the Virginia MAA, but, the Court of Appeals says, whether or not the MAA applies to this case, it is preempted by the federal PKPA. For the same reason, it doesn’t matter what the UCCJEA says. Meanwhile, there are a few interesting things to note about this case, not the least of which is that the Vermont trial court stated as part of its order “failure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody.” Of course it would be leaping to conclusions to assume that a heterosexual visitation parent would get such swift, no-nonsense relief in Vermont, but it does tempt one to sneak in the observation that a judge who’s that simplistic on visitation enforcement can’t be all bad. Also, it is useful to see our own Court of Appeals taking the PKPA so seriously and being so didactic about it. The Virginia Court of Appeals opinion does remind judges and practitioners that despite its title the PKPA is not limited to parental kidnapping cases, and that, as shown by a handful of federal and other-state citations, the PKPA preempts any conflicting state law. It also acknowledges that nothing permits a Virginia appellate court to rule that the Supreme Court of another state incorrectly interpreted its own child-custody-jurisdiction laws. (As for the argument that the Frederick County Virginia parentage ruling is not under the PKPA because it is not a custody or visitation determination, the Court of Appeals get around that one by stating that any common understanding of the term “parental rights” includes the right to custody).