Entries Tagged as 'child custody'

Virginia-Vermont Civil Union Custody Dispute Back on Appeal

I have prevously reported on a case of a Vermont civil union which was dissolved, but a custody battle over a child of that civil union had taken place in two states, Vermont and Virginia, where one of the partners had moved with the child. Virginia does not recognize same sex relationships.  Federal law does not either (in the defense of marriage act), but does uphold the custody decisions of an originating state, to prevent venue shopping by parents.

In this case, courts in both Vermont and Virginia (including their Supreme Court) have upheld the right of the Vermont courts to take precedence.  The U.S. Supreme Court has declined to hear an appeal, essentially agreeing with the existing court decisions.  Now the Virginia resident, Lisa Miller, is appealing the ability of Virginia courts to enforce the order of a court in Vermont.

In January, a Vermont judge denied Miller’s latest attempt in that state to deny visitation rights to Janet Jenkins.  The judge also said Miller risked losing custody of her daughter if she continues to violate court orders. The Vermont court also rejected Jenkins’ effort to get primary custody of Isabella, but did order she get five weeks of custody in the summer.

Click here for more details.

Can You Arbitrate Custody and Visitation?

The NJ Appellate Division decided this matter in an opinion published today.  Arbitration is an alternative (or complementary) dispute resolution method.  In a nutshell, instead of a court acting as the judge in a dispute, a private neutral acts as such.  The main advantage is that the rules are more relaxed than the court’s, which should lead to an expedited process.  The main disadvantage is that the decision has very narrow grounds to appeal (basically, arbitrator misconduct).

In the case of Fawzy v. Fawzy (A-5337-06T1), the court looked at whether parties in a matrimonial action can agree to binding, non-appealable arbitration of child custody and parenting time issues. The court concluded that such an agreement violates the court’s “parens patriae” (responsibility of the government to protect individuals in need) obligation to protect the best interests of the children and is void as a matter of law.  That (parens patriae) role requires the trial court to determine the best interests of
the children regardless of any agreement as to custody and parenting time (which could also include agreements negotiated in mediation or by attorneys).

The court did go on to say that as the courts gain experience in the arbitration of child support and custody
disputes, it may become evident that a child’s best interests are as well protected by an arbitrator as by a judge.

The appellate court remanded the case back to the family part in Middlesex County for a plenary hearing.

Virginia Supreme Court rules in Civil Union Custody Case

I’ve twice reported on a case before the Virginia Supreme Court dealing with a civil union custody battle originating in Vermont. You can read the past stories here and here.

Today, the VA Supreme Court issued their ruling on the case. AP reports:

Court: Vt. ruling stands in lesbian custody case

By LARRY O’DELL – 7 hours ago

RICHMOND, Va. (AP) — Virginia’s highest court ruled Friday that the state must enforce a Vermont court order awarding child-visitation rights to a mother’s former lesbian partner.

The Virginia Supreme Court rejected Lisa Miller’s claim that a lower court improperly ignored a Virginia law and a state constitutional amendment that prohibit same-sex unions and the recognition of such arrangements from other states.

The ruling was a victory for Janet Jenkins, who has been fighting for visitation rights since the dissolution of the civil union she and Miller obtained in Vermont in 2000. In 2002, Miller gave birth to the daughter, Isabella, who now is at the center of a legal battle closely watched by national conservative and gay rights groups.

Miller renounced homosexuality and moved back to Virginia with the child after the couple split, and she has fought Jenkins’ visitation efforts. However, the Supreme Court ruled that a federal law aimed at preventing parents from crossing state lines to evade a custody ruling requires Virginia to enforce Vermont’s order.

“I’m relieved that this tug-of-war with my daughter is over,” Jenkins said in a statement released by the gay-rights group Lambda Legal. “This has been a very long four years. My daughter and I need some time to be together. She needs her other mom.”

Miller’s attorney, Mathew Staver, said his client “has not lost her courage or her resolve” and will pursue other legal options. Staver, founder of Liberty Counsel and dean of the law school at the late Rev. Jerry Falwell’s Liberty University, said he hopes to raise the issue of Virginia’s constitutional amendment banning same-sex unions in a new proceeding.

Jenkins’ attorney, Joseph R. Price, said the decision “is fully consistent with Virginia, Vermont and federal law” on child custody and visitation matters.

“More important, the decision means that Isabella will have the support of both her parents as she grows up and that gay and lesbian parents can expect that they will be treated just like any other parents in a custody dispute, regardless of their sexual orientation,” he said.

The Virginia Court of Appeals twice ruled in favor of Jenkins. Miller’s attorneys missed a deadline for appealing the first ruling to the Virginia Supreme Court, so they filed a second appeal on different grounds. The appellate court ruled that the second case raised no new issues, and the Supreme Court agreed. In 2006, the Vermont Supreme Court also ruled in favor of Jenkins.

Miller’s supporters were encouraged a brief concurring opinion written by Virginia Chief Justice Leroy R. Hassell Jr., who said he disagreed with the appeals court’s first decision but agreed the justices could not consider the merits because the appeal was filed late.

“I see that as a red flag practically begging the attorneys to go back and file again because the issues at question were not considered,” said Matt Barber, policy director for cultural issues for the conservative Concerned Women for America. “It’s a temporary setback, but it’s not over.”