Child custody or visitation disputes incidental to divorce actions are probably more the rule than the exception.
It isn’t even all that unusual for a party that feels deeply aggrieved by a court’s resolution of the issues to seek a more favorable result in another state. Although such tactics once offered a reasonable chance of success, federal and state legislation now severely limit the prospects of having the courts of one state upset a custody or visitation order lawfully made by the courts of another.
There is nothing ordinary,
however, about a visitation dispute involving a 4-year-old girl that is
currently pending simultaneously in the courts of both
Lisa Miller-Jenkins and Janet
Miller-Jenkins lived together in
The following year, Lisa was
artificially inseminated with the sperm of an anonymous donor and, in April,
2002, gave birth to a daughter named Isabella. The women and Isabella lived
In November 2003, Lisa brought an
action to dissolve the civil union in a
The first court-ordered visitation
for Janet occurred without incident. Thereafter, however, Lisa refused to allow
her former partner to have any contact whatsoever with the child. Instead, Lisa
disavowed homosexuality and filed a petition in the Virginia Circuit Court to
determine the child’s parentage. The
On Sept. 9, 2004, the
Janet appealed that ruling to the
Virginia Court of Appeals, where the matter is currently pending. Meanwhile, in
August of this year, the Supreme Court of Vermont unanimously upheld the
contempt finding against Lisa and declared that
Supporters of civil unions and
same-sex “marriages” are lining up solidly behind the
The truth, however, is that this is an extraordinarily complicated case with novel legal issues not readily amenable to resolution under standard legal principles governing interstate custody and visitation disputes. The applicable statutes are the Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act.
Both set forth detailed criteria
for the resolution of jurisdictional issues in interstate custody and
visitation contests. In this case, they would clearly favor
The judges on the Vermont Supreme
Court appear to have initially decided that they wanted to retain jurisdiction
over the dispute and then crafted an opinion designed to accomplish that
result. The critical error in the court’s opinion is that it fails to address
the weighty consequences of reflexively applying statutes governing traditional
interstate marriage disputes to those involving civil unions. This failing is
especially remarkable since only one other state,
The Virginia Court was faced with
the reality that its Marriage Affirmation Act expressly prohibits recognition
of same-sex relationships, including civil unions. In refusing to accept the
parentage finding emanating from the
It is hardly axiomatic, therefore, that the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act must be blindly applied by every state to orders issued incidental to the dissolution of civil unions. Such a result, which advocates of same-sex relationships would dearly love to achieve, would bring the country one step closer to requiring every state to recognize not only civil unions but same-sex “marriages.”
Article 4, Section 1 of the U.S. Constitution provides, “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The U.S. Supreme Court has acknowledged an exception to this mandate, which allows a state to refuse to credit those acts of another state that contravene its own public policy.
Similarly, the Defense of Marriage Act (DOMA), which defines marriage as “a legal union of one man and one woman as husband and wife,” specifically provides that states need not recognize same-sex “marriages” performed in another state. Yet, homosexual rights advocates are certain to argue that the public policy exception shouldn’t extend to civil unions or same-sex “marriages,” and that the Defense of Marriage Act is an unconstitutional infringement on the scope of the full faith and credit clause. Given the mischief created by a judiciary that is too often agenda-driven, it is foolhardy to assume that these arguments can’t prevail.
Admittedly, even if the Supreme
Court does eventually hear this case and rules in favor of
It also provides a solid reason to resurrect the recently defeated Federal Marriage Amendment to the U.S. Constitution that defines marriage as a union of one man and one woman.
Opposition to the amendment came largely from Senate Democrats who, while claiming that it was superfluous in light of the Defense of Marriage Act and the public policy exception to the full faith and credit clause, were probably playing to their increasingly demanding homosexual rights constituency.
Traditional marriage is under unprecedented attack and needs constitutional protection. In the absence of this ultimate safeguard, its defenders will have to hold their collective breaths every time cases involving same-sex relationships such as the Vermont-Virginia dispute await judicial resolution.
Daniel D. Leddy, a former New York State Family Court Judge, has written extensively on family law and constitutional law. His weekly column,
“On the Law,” is published by the Staten Island Advance.