Virginia Supremes: 'Rule of the Case' Precludes Lisa Miller-Jenkins' Appeal

In a unanimous ruling announced this morning, the Virginia Supreme Court held that Lisa Miller-Jenkins is precluded by the doctrine of 'rule of the case' from getting the court to consider on the merits her argument that she should not have to comply with a Vermont court order to allow her former partner, Janet Miller-Jenkins, to have visitation with the child born to Lisa during their relationship (which included a Vermont civil union).  In a very brief concurring opinion, Chief Justice Leroy Rountree Hassell, while agreeing that 'law of the case' applied, asserted that the lower court's ruling was incorrect.

Lisa and Janet, each using the same hyphenated surname that combined their two surnames, had a Vermont civil union ceremony in 2000, while Virginia residents.  In April 2002, Janet gave birth to their child conceived through donor insemination.  A few months later, they moved to Vermont, where they resided together as a family until September 2003, at which time they separated and Lisa moved back to Virginia with the child.  However, Lisa initiated a proceeding in the Vermont court in November 2003 to dissolve the civil union and get a custody order regarding the child.  What she didn't count on was that the Vermont court, applying the civil union law, would consider the child to to have two mothers, and would look out for Janet's interest in maintaining contact with the child through visitation.  After the first visit in June 2004, Lisa cut off all further contact between Janet and the child.  Lisa filed suit in the Virginia courts, seeking a declaration of sole parental status, while Janet pursued her remedy in the Vermont court, seeking a contempt order.  Ultimately the cases got into the appellate courts in both states.  In Vermont, it proceeded through the Supreme Court level and back to the trial court with a final order that Lisa allow visitation to Janet.  In Virginia, a trial judge, citing Virginia's decisive rejection of any legal status for same-sex couples, ruled in Lisa's favor, but was reversed by the intermediate court of appeals, which held that under the federal Parental Kidnapping Prevention Act, the Vermont courts retained sole jurisdiction over the question of custody and visitation of the child, as Lisa had initiated the action there and the Vermont court had appropriate jurisidiction to dissolve the civil union and make custody/visitation determinations with respect to the child.  To the court of appeals, the federal law preempted any reliance on Virginia public policy against recognizing a legal status for same-sex partners, and the Defense of Marriage Act was just plain irrelevant.  Lisa sought to appeal this to the Virginia Supreme Court, but slipped up and waited too long, so her appeal on the merits was time-barred.

Lisa was still resisting letting Janet have visitation.  Ultimately, the Vermont court issued a final order, which Janet sought to file for enforcement in the Virginia courts.  Lisa used the occasion of this "new case" to try to appeal the merits of the original ruling yet again, under the guise of opposing the filing of the Vermont visitation order.  The Virginia Supreme Court found that even though they were two different lawsuits, the 'law of the case' doctrine as applied in Virginia, bars Lisa from trying to raise the same arguments again.   Wrote Justice Barbara Milano Keenan for the court, "The two Virginia appeals were part of the 'same litigation' seeking to resolve the single question which custody order, the Vermont custody order or the [virginia] circuit court's order, would govern the parties' custody and visitation dispute. . .  Finally, we observe that the Court of Appeals' holding in the first Virginia appeal is binding under the 'law of the case' doctrine only with respect to the parties and the issues in the case before us.  Thus, based on our holding that the Court of Appeals' decision in the first Virginia appeal is the 'law of the case,' we do not reach the merits of the underlyilng issues presented in this appeal."

In his concurrence, Chief Justice Hassell, while joining the court's opinion, wrote, "However, I write separately to state that I have serious concerns about the Court of Appeals' opinion in the former appeal, Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va. App. 2006)  I do not believe that this decision was correctly decided."  But the 'law of the case' doctrine "prohibits this Court from considering the merits of the former appeal in this proceeding."

Thus, although the Virginia Supreme Court has given finality to the determination that the Vermont custody order is binding in Virginia, it has made clear that the holding of the court of appeals has not been affirmed by the Supreme Court on the merits, and the question remains open for future cases whether this particular construction of the federal kidnaping statutes and its interrelation with interstate custody disputes was correctly applied in this case.

Comments

[Larry Fafarman]

The original post says,

--"The Virginia Supreme Court found that even though they were two different lawsuits, the 'law of the case' doctrine as applied in Virginia, bars Lisa from trying to raise the same arguments again. "--

It looks like the principle applied by the VA Supreme Court here is appropriately called res judicata or collateral estoppel. So why didn't the court use one of those terms instead of "law of the case"?

--"In his concurrence, Chief Justice Hassell, while joining the court's opinion, wrote, "However, I write separately to state that I have serious concerns about the Court of Appeals' opinion in the former appeal, Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va. App. 2006) I do not believe that this decision was correctly decided." But the 'law of the case' doctrine "prohibits this Court from considering the merits of the former appeal in this proceeding." --

His statement of opinion that the appeals court decision in the former lawsuit is incorrect is just unnecessary dictum and could prejudice future litigation on the issue. IMO he should have kept his mouth shut about that.

[Art Leonard]

I'm not sure why the court used the particular terminology that it used. Perhaps because it did not want to appear to be expressing any agreement with the court of appeal's decision on the merits in the earlier case, but merely to say that because Lisa failed to perfect a timely appeal in the earlier case, that decision was final, not subject to review, and reopening the issue as between these parties was precluded.

By the way, Alliance Defense Fund says it will again try to get the U.S. Supreme Court to take this case (having struck out the first time around), and then if that is not successful, will go back to the trial court and try to introduce the Virginia anti-gay marriage amendment as a new element in the case.

I'm not sure what kind of mileage they think they can get from either of these routes. The Supreme Court of the U.S. is unlikely to intervene in a state family law decision where the party petitioning the Court for certiorari failed to effect a timely appeal in the first instance in state court. And since the earlier decision found that the federal statute preempted Virginia law on point, raising the Virginia constitutional amendment makes no difference, as state constitutions are also preempted by federal law.

The plain fact, of course, is that requiring visitation is not an instance of recognizing any marriage. It is about the relationship between Janet and the child, not any relationship between Janet and Lisa. Alliance Defense Fund is in it so strongly, I think, because Lisa became a "Christian" and disavowed her lesbian past, so now they want to claim that being required to let Janet have visitation with the child improperly burden's Lisa's religious free exercise rights, or perhaps that Lisa, as the child's mother, has the right to "protect" her child from being "exposed" to a woman whose "lifestyle" Lisa disapproves on religiously-based moral grounds.

But the point is that the best interest of the child standard is not about the parents, it's about the child. And the federal statute is intended to cut through complications by vesting just one state's courts with jurisdiction in an interstate custody/visitation dispute, the first court to exercise proper jurisdiction in the case. Since it was Lisa who initiated an action first in Vermont state court to have a custody/visitation determination made, she voluntarily vested the Vermont courts with jurisdiction (even though, at the time, she was living with the child in Virginia).

[Archena]

I'm not aware of any state that permits unrelated persons without some validating claim, such as a marital relationship, to pursue visitation or custody (Jenkins has pursued both). Without the 'marital' or in this case 'civil union' relationship Jenkins would not have standing to pursue any action. That standing comes from the so-called 'civil union' ergo any ruling that tacitly or directly recognizes that standing recognizes the 'civil union' from which it springs. The appellate court tried to duck the issue by returning it to Vermont but in so doing did in fact recognize the 'civil union' by applying PKPA. Without a 'civil union' to establish some form of claim to parental rights there is no reason to apply PKPA.

In applying PKPA the appellate court is acknowledging standing for Jenkins and ipso facto 'civil unions'. The appellate court is in error, in my opinion, for not considering Virginia's marital laws since it had to recognize Vermont's in order to apply PKPA.

In any instance standing for the plantiff has to be established and an unrelated and unconcerned party would not have standing. The recognition of standing necessarily includes the recognition of the source of said standing - it is therefore illogical to argue that allowing/considering visitation does not include a recognition of marriage or civil union when one of the two is the source for the standing to bring action.

[Art Leonard]

Actually, courts in several states have found standing based on the relationship established between the same-sex partner and the child, especially in cases where the partners had planned together to have the child, and the birth mother had treated her partner as a full parent from the moment of the child's birth going forward. This is the "de facto" parent concept that has been approved by courts in California, Wisconsin, New Jersey... and it hinges totally on the relationship between the child and the birth mother's partner, not on the relationship between the two women as such.

[Archena]

Um, you might want to think about that a bit more - it's self-refuting. If the 'de facto' parent has no relationship to the actual parent how is the relationship with the child formed? The only means I can think of would involve child abandonment, child abuse or kidnapping - extremely dubious claims for standing in such a case, wouldn't you agree?

Look at your own explanation - in all examples that you mention the 'parental' relationship originates with the partner relationship. From your explanation alone (I'm not otherwise familiar with this 'de facto' parent theory) the court must necessarily look at the partner relationship to establish the validity of the claim to 'de facto' parenthood. The relationship of 'de facto' parent to child cannot be the sole determinant in establishing whether or not a 'de facto' parental relationship exists - and indeed you yourself point to the relationship of the partners as a means for strengthening the claim (parenting by mutual consent). It seems to me that nothing in the 'de facto' parent concept refutes my point.

I believe my point still stands - when recognizing standing the courts necessarily recognize the relationship from which standing is derived.

[Art Leonard]

You're commenting out of ignorance of the case law concerning the "de facto" parent theory. As developed by courts in several states, one factor in the multi-factorial test is that the birth mother has fostered and encouraged the relationship between the child and the non-biological parent. A legal relationship of any sort between the birth mother and the non-biological parent is not part of this multi-factorial test. Indeed, the test was developed in states where, at the time the courts adopted this theory, there was no recognized legal relationship for same-sex couples.

You would do well to read the opinions on this theory before commenting about it.