LIKE MANY marriages, the union of Lisa Miller-Jenkins and Janet Miller-Jenkins didn't work out. And like many children involved in divorce proceedings, their daughter, Isabella, born to Lisa two years ago through artificial insemination, was caught in a nasty custody dispute. But Isabella also has been caught in the nasty politics of gay marriage in Virginia.
Lisa and Janet Miller-Jenkins came together under Vermont's civil union law. When the relationship fell apart, Lisa went to court in Vermont to dissolve it, and she asked the Vermont court to determine custody and visitation. This summer the court issued a temporary order awarding custody to Lisa, who moved to Virginia shortly before filing for the dissolution, and visitation rights to Janet. Janet's lawyer alleges, however, that Lisa has defied this order, prompting a contempt proceeding in Vermont. Instead of letting the Vermont case play out, Lisa went to court in Virginia, arguing that she should be declared sole parent and granted all parental rights. This week, Frederick County Circuit Judge John R. Prosser ruled that a law the General Assembly passed this year makes the couple's Vermont marriage irrelevant in the commonwealth. His decision is legally wrong as well as cruel, and an excellent illustration of why passing this law was so dangerous in the first place.
Why legally wrong? Virginia's Affirmation of Marriage Act declares "void in all respects in Virginia" any "civil union, partnership contract or other arrangement entered into by persons of the same sex in another state." The law is noxious, but in this case it also should have been deemed irrelevant. Whether Virginia must honor Vermont's civil unions was not at issue; federal law makes clear that it does not have to. But federal law also makes clear that no Virginia court can interfere in an ongoing custody case in another state, whether the dispute involves the dissolution of a marriage, unmarried people, grandparents or members of Vermont's civil unions. The law, which Judge Prosser simply ignored, says that once a custody proceeding has properly begun in any state, no other state's courts have jurisdiction over that case.
This may sound technical, but it matters. The federal law protects against forum shopping by parents who don't like the deal they got the first time around. If Virginia could nullify other states' custody arrangements because the litigants are gay, the commonwealth would become a haven for gay parents in custody battles who are willing to hide their children behind the General Assembly's bigotry. Judge Prosser's unreasoned decision ought to be reversed on appeal.
In any custody dispute, the interests of the child should be paramount. The Vermont court, following orderly proceedings, has provided access for two parents who presumably love Isabella. Whatever one thinks of gay marriage, it isn't the place of Virginia courts to score political points by jumping in and declaring one side the sole legal parent. Unfortunately, neither the interests of children nor fidelity to the law were the intentions of the flagrantly unconstitutional Affirmation of Marriage Act, which was designed to insult and impugn gay people's dignity. Mission accomplished.