Virginia Lawyers Weekly

In the latest round of the legal wrangling over visitation for 7-year-old Isabella Miller, the Court of Appeals holds that the circuit court had no jurisdiction to rule on Lisa Miller’s request for a declaratory judgment that would have blocked registration of Janet Jenkins’ Vermont visitation order in a Virginia court.

Isabella was the child born to Lisa Miller in April 2002 after she and Janet Jenkins had entered into a civil union in Vermont.

Miller subsequently sought to have the union dissolved, and Jenkins was awarded visitation rights as part of the dissolution.

However, Miller moved to Virginia with Isabella and has ignored the orders of Vermont courts directing her to allow Isabella to visit Jenkins.

Miller contends that Virginia’s public policy against same-sex unions frees her from any obligation to abide by the Vermont orders, but the Court of Appeals ruled that the federal parental Kidnapping and Protection Act vests Vermont with sole jurisdiction over custody and visitation of Isabella.

The Supreme Court of Virginia refused in Miller-Jenkins v. Miller-Jenkins to review the merits of that holding because of procedural problems in the appeal.

In the current appeal, the Court of Appeals holds that the Winchester Circuit Court had no jurisdiction to rule on Miller’s request for a declaratory judgment that would have blocked registration of the Vermont visitation order in a Virginia court.

Jenkins already had filed papers to have the order enforced, and the proper procedure is to decide the issues in that proceeding rather than to seek what would have amounted to an advisory opinion, the panel said.

Miller is not without an adequate remedy at law. She can and is defending against Jenkins’ motion to register and enforce the custody orders. All the claims that Miller raises in this case are available in the case filed by Jenkins. Thus, the trial court properly dismissed Miller’s claim for an injunction as well.

We hold that the circuit court did not have jurisdiction to issue a declaratory judgment in this case and we affirm its dismissal of Miller’s complaint.

Miller v. Jenkins (Humphreys, J.) No. 2405-08-4, June 23, 2009; Winchester Cir.Ct. (Prosser) Matthew D. Staver for appellant; Gregory R. Nevins for appellee. VLW 009-7-266, 7 pp.

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