Virginia Court surprisingly Rules in Favor of Lesbian Vermont Partner!

First, a summary: In a surprise win, a lesbian partner successfully got her custody case moved back to Vermont where a custody order is already in place.

The Vermont woman's former partner moved back to Virginia with their child and attempted to argue that the Vermont Custody Order should not be upheld now that she and the child (her biological child) are residing in Virginia.

Interestingly, had the VA woman argued for a new Custody Order in VA instead of arguing that the VT Order should not be upheld, she probably would have been successful.

Now for the details: Janet and Lisa went to VT and entered into a civil union. The couple returned to VA where they had been living, Lisa was inseminated and a child was born in VA. When the child was 4mo, the family moved to VT where they lived for a little over a year at which point, the couple split up.

When the relationship ended, Lisa, the biological parent, took the child and moved back to VA. 2mo later Lisa filed a petition in VT to dissolve the civil union. In her Request to Dissolve the union, Lisa stated that the child was "the biological or adoptive" child of the civil union.

Lisa asked the VT court to do four things:
1) to dissolve the civil union
2) to award her legal and physical “rights and responsibilities for the minor child,”
3) to award Janet “suitable parent/child contact (supervised),” and
4) to “award payment of suitable child support money.”

The Vermont Court Order gave Lisa temporary legal and physical responsibility for the child and gave Janet parent-child contact in the form of visitation.

Two weeks after the Order was issued, Virginia's Marriage Affirmation Act became law and Lisa filed with the Virginia court asking them to affirm Lisa's sole right to the child and deny Janet any rights to the child.

And so the war began ....

Lisa asked the Virginia Court to do three things - first, find that the VT court acted improperly in their Custody ruling because it did not determine that Janet was a parent.

This is an interesting perspective for Lisa to take, especially considering she was the one who filed the Vermont petition stating that the child was "the biological or adoptive child" of the civil union! She further asked the VT court to award Janet "suitable parent/child contact" and to award Lisa monetary compensation in the form of child support.

Second she argued that even if the Virginia Court found the Vermont Court acted properly in issuing its Custody Order, the Virginia Court now has jurisdiction because Lisa has filed a parentage action in Virginia.

Now here's the problem with this piece of Lisa's argument. She argues that her parentage action is not a custody action or a visitation action and because it's not a custody or visitation action, VA now has jurisdiction. She claims she is only asking the VA court to determine that Janet is not a parent and therefore isn't entitled to custody or visitation of the child .... <--- did you see it? It's not a custody action or a visitation action ... yet she specifically requests that Janet not have custody or visitation rights. Hmmmmm.

Lisa was likely trying to get VA to determine that Janet was not a parent in her initial action. She would then have used that determination to trump the Vermont Custody Order in an effort to cut Janet out of the child's life.

But she failed to recognize that she was contradicting herself in her arguments and, as a result, seems to have gotten one of the most homophobic states in the country to make a determination in favor of gay rights.

Third Lisa argued that even if VT's ruling was proper and VA's Order is somehow construed as improper, then the federal Defense of Marriage Act (DOMA), which authorizes states to decline to afford "full faith and credit" to same-sex marriages from other states, effectively overrides any custody or visitation order. But the Virginia appeals court disagreed, finding that DOMA only applies to marriage recognition, and has no apparent application to custody or visitation orders.

Again, Lisa's argument seems quite illogical. She tries to use a marriage act (and the fact that it is legal in Virginia to not recognize a same-sex union from another state) as justification for Virginia to also deny a custody order issued in another state.

Virginia ruled against Lisa on all counts. They cited Lisa's crucial mistake - Lisa was the one who moved to Virginia and petitioned VERMONT for a custody ruling. Had Lisa petitioned Virginia for the initial custody arrangment, VA would have maintained jurisdiction over the custody of the child and VT would have had no claims to jurisdiction.

Thankfully Lisa (and presumably her counsel) were too stupid to realize they should have filed in VA to begin with. As a result, there is now supporting caselaw for the rest of us to benefit from.

Just because you flee from a state where there is a custody order in effect, doesn't mean you get out of enforcement of that order.

Just because you decide you don't want your same-sex partner to no longer be considered a parent, doesn't make them not a parent. Nor does it necessarily mean a court will say they're not a parent just because you want them to.

This case could have far reaching consequences for non-biological parents in same-sex relationships if the relationship dissolves.

Way to go Janet!