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averted in lesbian custody case

A Virginia appeals court ruled Tuesday that Vermont courts have jurisdiction in a custody battle between two former lesbian partners.
/ Source: The Associated Press

A Virginia appeals court sidestepped the issue of civil unions Tuesday and ruled that Vermont courts have jurisdiction in a custody battle between two former lesbian partners.

The Court of Appeals of Virginia remanded the dispute between Janet Miller-Jenkins and Lisa Miller-Jenkins to a lower court.

"By so holding, we do not address whether Virginia law recognizes or endorses same-sex unions entered into in another state or jurisdiction," the court wrote in its decision, adding the ruling was based on jurisdiction.

Vermont became the first state in the nation to recognize same-sex couples' relationships in 2000, enacting a civil union law that mimics marriage. Virginia does not have a similar statute, and voters in November approved a constitutional ban on gay marriage.

The two women 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 2001 while the couple was together and a child, Isabella, was born the following April.

They eventually moved full-time to Vermont in August 2002.

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

In August, however, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction in the custody battle. It conflicted with a lower court order in Virginia granting Lisa Miller-Jenkins custody of the child, which the appeals court ruled on Tuesday.

In returning the case, Virginia Appeals Judge Jere Willis Jr. wrote:

"This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. The only question before us is whether ... Virginia can deny full faith and credit to the orders of the Vermont court.

"It cannot."

Uniform laws throughout the U.S.The Vermont court wrote that the dispute revolved around a federal law and a uniform state law that's on the books in some form in every state. The federal law is the Parental Kidnapping Protection Act and the state statute is the Uniform Child Custody Jurisdiction Act.

The Court of Appeals of Virginia agreed.

The laws gave Vermont jurisdiction because state courts had determined that the women's relationship was legally valid and they were both legally the parents of the child.

Legal experts have said the differing interpretations by the two states' courts could place the question of civil unions and same-sex marriages before the U.S. Supreme Court, even if the justices want it dealt with at the state level.