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State sovereignty at issue in visitation dispute

The much-litigated custody of 6-year-old Isabella Miller-Jenkins was in court again today, this time before the Supreme Court of Virginia

Mathew Staver, the head of Liberty Counsel and dean of the Liberty University law school, told the court that the Virginia Constitution and the federal Defense of Marriage Act prevent the court from considering anything about a same-sex civil union. He represents Lisa Miller-Jenkins, the biological mother of Isabella, who is trying to cut off the visitation rights of her former partner, Janet Miller-Jenkins.

Joseph R. Price, the Washington attorney who represents Janet, responded that the federal Parental Kidnapping Prevention Act and the full faith and credit clause of the U.S. Constitution require Virginia courts to honor the visitation order entered by Vermont courts.

Lisa Miller-Jenkins and Janet Miller-Jenkins were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination in Virginia in 2001 while the couple was together and a child, Isabella, was born the following April. They moved full-time to Vermont in August 2002.

In the fall of 2003, the women separated and Lisa Miller-Jenkins moved back to Virginia. She filed in Vermont for dissolution of their civil union, which is akin to a divorce, and sought custody of Isabella.

In June 2004, a Vermont family court granted Janet Miller-Jenkins visitation rights; that October, a Frederick County court issued a contradicting decision.

In August 2006, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction in the visitation dispute. The Virginia Court of Appeals agreed two months later in Miller-Jenkins v. Miller-Jenkins.

In April 2007, the U.S. Supreme Court also refused to hear Lisa Miller-Jenkins’ appeal of the Vermont court ruling.

The litigation has become something of a procedural mess since then. Suffice it to say that a major hurdle for Staver is convincing the justices that all the legal points in the case weren’t at issue when the Supreme Court dismissed an earlier appeal because of a procedural default.

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