Virginia Family Law Appeals

Liberty University's insurer needn't defend it in civil suit for anti-gay child abduction & advocacy - US Appeals Court

The federal Fourth Circuit court of appeals has reversed a trial court ruling that had said the University's insurance company should have defended it against a civil suit for the role its employee played in the international child abduction in the Miller-Jenkins case between Vermont and Virginia. A Vermont lesbian couple broke up and the partner who was the child's natural mother took her to Virginia and claimed that since Virginia would not recognize the couple's Civil Union under its Defense of Marriage Act, it should not recognize the other woman's parenthood and should not enforce a role for her in the child's life. This argument failed, going all the way to the Virginia Supreme Court, and a network of Christians who conscientiously objected to the state having the power to make a non-parent a parent (at least in a gay relationship) helped the mother flee to Nicaragua with the child.

The insurer was not required to defend the suit because the insurance policies have exclusions for:

• any harm that was “expected or intended from the standpoint of the insured”
• injuries “arising out of a criminal act committed by or at the direction of the insured.” 
• any “‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’” 

The Court continues:

"Critically, unlike the underlying complaints considered in the cases cited by the district court, the Jenkins Complaint does not allege that Appellee was responsible for its agents’ intentional acts because it was negligent. Rather, the Jenkins Complaint alleges that Appellee is directly liable for harm arising from its intentional participation in conspiracies and vicariously liable for the intentional acts of its agents."

Something that should be very disturbing to any family-law attorneys, law professors, to anyone who has advocated civil disobedience of what they believe to be unconstitutional laws and directives, and to any lawyers who defend people in controversial cases that pit various kinds of human right against each other, is this:

The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents’ racketeering, and for its agents’ participation in a conspiracy to violate Jenkins’s and the child’s “rights to a parent-child relationship.”

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school’s professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. 

...

The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of 7 action for a person in . . . Miller’s situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights . . . of same-sex families.” 

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s’] tortious, racketeering activity.” 

So, in several respects, the underlying lawsuit was a blatantly unconstitutional, Un-American "SLAPP" suit -- a "Strategic Lawsuit Against Public Participation." But it is hard to distinctly say that it actually stands on its own as such a suit, because it also includes what sound like very legitimate claims that should have been redressed: the same people named in the lawsuit for their academic work, and legal and political advocacy, were also alleged to have done very concrete things, which they should have known were illegal, to help the mother sneak the child out of the country to prevent the other mother from visiting with her. Even though they honestly believe that the other mother is not a real mother, had no rights, and that the government violates parents' rights, and gains dangerous and unprecedented power, when it decrees that a non-parent is a parent and that the biological father is not a parent (except in cases where it is required by the child's needs because of child abuse or neglect). 

The suit against the University was dismissed, but the immediate effect of this ruling is that the insurance company will not have to reimburse the University for its legal fees and costs in that suit.

LIBERTY UNIVERSITY, INC., v. CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER AMERICAN INSURANCE COMPANY; HANOVER INSURANCE COMPANY, published, U.S. Fourth Circuit, Case No. 14-2254 (July 10, 2015).

More background on the case:

The real story behind Miller-Jenkins

 

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com

 

Fathers' group explains its support for gay parents' custody rights

Sailor allowed to relocate children across country

Virginia’s Court of Appeals upholds a decision letting a Navy sailor move her children from Norfolk to her new posting in San Diego; she had looked for postings in both areas as her current assignment neared its end. Stated and implied reasons:

• Mother’s family connections on the West Coast, including her mother who would help care for the children and an aunt in Arizona who could be available in an emergency.
• Father’s mental health condition made him unable to care for the children for extended periods.
• Inconsistently with that, but importantly, the trial court had protected the father-child relationship as much as possible by ordering the most equal sharing possible of the children’s time, giving father all summer with them in Virginia and liberal visits in California.
• The trial court did not give the mother any preference under the Virginia Military Parents Equal Protection Act, such as a different burden of proof. It took the facts, including those related to her military service, into account when seeking a determination that would be in the best interests of the child.
• The father did not have any job that would keep him from moving to California too, nor which contributed to the children’s welfare. He did maintenance work in exchange for living rent-free.
• In the past, the father had moved with the mother’s Navy moves. (That is largely a good point, but it is a fundamentally different decision to move as part of an intact couple, which makes decisions together and cares for each member’s sustainable welfare, versus pulling up stakes and moving based on the movements of an autonomous “legal stranger” who could go elsewhere at any time and may not share information about intentions, possibilities, etc. I recently had a case where a soldier was reassigned to Malaysia, and while litigating against relocation the mother also made serious efforts to get a job there, but then before he moved, the assignment changed to Hawaii, and then to Germany before he actually moved away.)
• The mother’s regular income, health benefits, etc. Those of course are not a legitimate reasons for giving one parent custody over another, and it’s hard to imagine a father getting away with asserting those factors. But in this case, the mother said that if she could not move to San Diego she would leave the Navy. (The opinion does not say if she would be forced to leave the Navy, or choose to. Nor does it discuss civilian jobs the mother could get in Virginia, nor whether she had served long enough to retire with health benefits.)

Not all these factors would normally be very persuasive, nor weigh completely in favor of the mother, but they were all viewed differently in the light of the father’s obvious personal problems and inability to function as a custodial parent.

Wheeler v. Wheeler (unpublished, 5/19/15) VLW 6-1-15 p 16