Present: Judge Clements, Senior Judges Willis and Annunziata
Argued at Alexandria, Virginia
JANET MILLER-JENKINS
OPINION BY
v. Record No. 2654-04-4 JUDGE JERE M.H. WILLIS, JR.
NOVEMBER 28, 2006
LISA MILLER-JENKINS
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
Joseph R. Price (Lisa M. Vollendorf; Gregory R. Nevins; Rebecca
Glenberg; John L. Squires; Arent Fox PLLC; Lambda Legal Defense
& Education Fund, Inc.; American Civil Liberties Union; Equality
Virginia Education Fund, on briefs), for appellant.
Rena M. Lindevaldsen (Mathew D. Staver; Scott E. Thompson;
Liberty Counsel, on brief), for appellee.
Amicus Curiae: Virginia Chapter of the National Association of
Social Workers; Virginia Women Attorneys Association; Virginia
Poverty Law Center, Inc.; Virginia National Organization for
Women; Virginia Organizing Project (Thomas M. Wolf; Kenya N.
Washington; LeClair Ryan, PC, on brief), for appellant.
Janet Miller-Jenkins ("Janet") appeals the October 15, 2004 "Final Order of Parentage"
of the Circuit Court of Frederick County ("trial court"). In that order, the trial court held (1) that
Lisa Miller-Jenkins ("Lisa") is "the sole biological and natural parent of" IMJ, a minor, (2) that
Lisa "solely has the legal rights, privileges, duties and obligations as parent hereby established
for the health, safety, and welfare of" IMJ, and (3) that neither Janet "nor any other person has
any claims of parentage or visitation rights over" IMJ.
On appeal, Janet contends the trial court erred (1) in failing to recognize that the federal
Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C. 1738A, barred its exercise of
jurisdiction, (2) in holding that the Virginia Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA"), Code 20-146.1 et seq., permitted it to exercise jurisdiction, and
(3) in refusing to enforce the June 17, 2004 custody order of the Rutland County, Vermont
Family Court ("Vermont court").
We hold that the trial court erred in failing to recognize that the PKPA barred its exercise
of jurisdiction. Accordingly, we vacate the orders of the trial court and remand this case with
instruction to grant full faith and credit to the custody and visitation orders of the Vermont court.
I. BACKGROUND
Beginning in the late 1990's, the parties lived together in Virginia. On December 19,
2000, they traveled to Vermont and entered into a civil union pursuant to the laws of that state.
See Vt. Stat. Ann. Tit. 15, 1201 et seq. Thereafter, while residing in Virginia, Lisa was
artificially inseminated with sperm from an anonymous donor. In April 2002, she gave birth to
IMJ. In August 2002, the parties and IMJ moved to Vermont and established residence there. In
September 2003, the parties ended their relationship. Lisa moved to Virginia with IMJ. Janet
remained in Vermont.
On November 24, 2003, Lisa filed in the Vermont court a "Complaint for Civil Union
Dissolution." She designated IMJ as "the biological or adoptive" child of the "civil union." She
asked the Vermont court to dissolve the civil union, to award her legal and physical "rights and
responsibilities for the minor child," to award Janet "suitable parent/child contact (supervised),"
and to "award payment of suitable child support money."
On June 17, 2004, the Vermont court entered a "Temporary Order Re: Parental Rights &
Responsibilities." In that order, the Vermont court awarded Lisa "temporary legal and physical
responsibility for the minor child of the parties," and awarded Janet "on a temporary basis,
parent-child contact with the minor child as follows . . . ." The order then listed the specifics of
that contact, and in so listing thrice used the word "visitation."
On July 1, 2004, the day Virginia's Marriage Affirmation Act ("MAA"), Code 20-45.3
became law, Lisa filed in the trial court a "Petition to Establish Parentage and for Declaratory
Relief." She asserted that she had "sole custody" of IMJ, and asked the court (1) to declare that
she was "the sole parent of" IMJ, (2) to rule that she was "to be the sole parent of and to have
sole parental rights over" IMJ, (3) to adjudicate any parental rights claimed by Janet "to be
nugatory, void, illegal and/or unenforceable," and (4) to award her attorney's fees and costs.
On July 19, 2004, after learning of the petition filed by Lisa in Virginia, the Vermont
court entered the following order:
This Vermont Court has and will continue to have
jurisdiction over this case including all parent-child contact issues.
This Court is unaware of any proceeding available in a state that
does not recognize a civil union to resolve the issue of this case.
This Court will not and cannot defer to a different State that would
preclude the parties from a remedy.
The Temporary Order for parent-child contact [is] to be
followed. Failure of the custodial parent to allow contact will
result in an immediate hearing on the need to change custody.
On July 29, 2004, Janet filed a demurrer to Lisa's Virginia petition. On August 18, 2004,
the trial court entered an order (1) recognizing that Janet was entering a special appearance for
the purpose of contesting jurisdiction, (2) directing the parties to file memoranda addressing the
question of jurisdiction, and (3) staying all visitation between Janet and IMJ except for
supervised visitation in Virginia. Following an August 24, 2004 hearing, the trial court ruled it
had jurisdiction pursuant to the MAA and the UCCJEA. It memorialized this ruling in a
September 9, 2004 order.
Meanwhile, the Vermont court, by order entered September 2, 2004, held Lisa in
contempt for refusing to comply with the child visitation terms of its June 17, 2004 order.
On October 15, 2004, the trial court entered the final order in this case, setting forth the
holdings delineated in the first paragraph of this opinion.
On appeal by Lisa, the Supreme Court of Vermont ("Vermont Supreme Court") affirmed
the judgment of the Vermont court, holding, inter alia, that the civil union entered into by Lisa
and Janet was valid under Vermont law; that the Vermont court had jurisdiction to dissolve that
civil union and to determine all its implications, including the parentage of and parental rights
and responsibilities with respect to IMJ; and that the Vermont court acted properly in holding
Janet to be a parent of IMJ and in assigning parental rights and responsibilities to her.
Miller-Jenkins v. Miller-Jenkins, __ A.2d __, 2006 Vt. LEXIS 159, at ** 2-3, (Vt. Aug. 4, 2006).
It held that PKPA afforded preemptive jurisdiction to Vermont and denied full faith and credit to
Virginia orders contradicting those entered by the Vermont court. Id. at __, 2006 Vt. LEXIS
159, at ** 13.
II. ANALYSIS
A. The PKPA
1. Statutory History and Analysis
28 U.S.C. 1738A, commonly referred to as the Parental Kidnapping Prevention Act,
carries the following title: "Full faith and credit given to child custody determinations."
Subsection (a) of the PKPA reads: "The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of
this section, any custody determination or visitation determination made consistently with the
provisions of this section by a court of another State."
The United States Supreme Court has succinctly summarized the thrust of the PKPA:
The Parental Kidnap[p]ing Prevention Act (PKPA or Act)
imposes a duty on the States to enforce a child custody
determination entered by a court of a sister State if the
determination is consistent with the provisions of the Act. In order
for a state court's custody decree to be consistent with the
provisions of the Act, the State must have jurisdiction under its
own local law and one of five conditions set out in 1738A(c)(2)
must be met. Briefly put, these conditions authorize the state court
to enter a custody decree if the child's home is or recently has been
in the State, if the child has no home State and it would be in the
child's best interest for the State to assume jurisdiction, or if the
child is present in the State and has been abandoned or abused.
Once a State exercises jurisdiction consistently with the provisions
of the Act, no other State may exercise concurrent jurisdiction over
the custody dispute, 1738A(g), even if it would have been
empowered to take jurisdiction in the first instance, and all States
must accord full faith and credit to the first State's ensuing custody
decree.
Thompson v. Thompson, 484 U.S. 174, 175-77 (1988) (footnotes omitted).
The PKPA had its genesis in the confusion concerning the applicability of the full faith
and credit doctrine, 28 U.S.C. 1738, to child custody orders. See Thompson, 484 U.S. at 180.
Indeed, "a parent who lost a custody battle in one State had an incentive to kidnap the child and
move to another State to relitigate the issue." Id. Yet, despite its unofficial and common title,
the PKPA is not limited to parental kidnapping cases.
"[T]he principal problem Congress was seeking to remedy was the
inapplicability of full faith and credit requirements to custody
determinations. . . . The sponsors and supporters of the Act
continually indicated that the purpose of the PKPA was to provide
for nationwide enforcement of custody orders made in accordance
with the terms of the UCCJA . . . . Congress' chief aim in
enacting the PKPA was to extend the requirements of the Full
Faith and Credit Clause to custody determinations . . . ."
Scott v. Rutherfoord, 30 Va. App. 176, 187, 516 S.E.2d 225, 231 (1999) (quoting Thompson,
484 U.S. at 181, 183) (emphasis added). See also Wilson v. Gouse, 441 S.E.2d 57, 60 (Ga.
1994) ("the PKPA was intended not only to apply where a child was abducted by a parent and
removed to another state but to remedy what was widely considered to be the inapplicability of
the full faith and credit statute to child custody orders" (footnote omitted)).
Moreover, it is well settled that the PKPA preempts any conflicting state law. See Meade
v. Meade, 812 F.2d 1473, 1476 (4th Cir. 1987) ("The PKPA quite simply preempts conflicting
state court methods for ascertaining custody jurisdiction."). See also Murphy v. Woerner, 748
P.2d 749, 750 (Alaska 1988); Delk v. Gonzalez, 658 N.E.2d 681, 684 (Mass. 1995); In re
Clausen, 502 N.W.2d 649, 673-74 (Mich. 1993); In re Relationship of Henry, 951 P.2d 135, 138
(Or. 1997); State ex rel. Conforti v. Wilson, 506 S.E.2d 58, 62 (W. Va. 1998); Michalik v.
Michalik, 494 N.W.2d 391, 394 (Wis. 1993).
Pursuant to Vt. Stat. Ann. tit. 15, 1206, Lisa filed a "Complaint for Civil Union
Dissolution" with the Vermont court on November 24, 2003. By doing so, she placed before the
Vermont court the issues of the parties' legal and physical "rights and responsibilities"
concerning IMJ and "suitable parent/child contact." In Vermont, the term "parental rights and
responsibilities" means "the rights and responsibilities related to a child's physical living
arrangements, parent child contact, education, medical and dental care, religion, travel and any
other matter involving a child's welfare and upbringing." Vt. Stat. Ann. tit. 15, 664(1). And
the term "parent child contact" means "the right of a parent who does not have physical
responsibility to have visitation with the child." Vt. Stat. Ann. tit. 15, 664(2).
In reviewing the applicability of the PKPA to the trial court's action, we are guided by
the wording of the statute. "A principal rule of statutory interpretation is that courts will give
statutory language its plain meaning." Davenport v. Little-Bowser, 269 Va. 546, 555, 611
S.E.2d 366, 371 (2005). At its threshold, the PKPA requires that a court making a child custody
or visitation determination have "jurisdiction under the law of such State." 28 U.S.C.
1738A(c)(1). The Vermont Supreme Court held that the Vermont court had jurisdiction under
the laws of Vermont over the case initiated by Lisa's complaint. See Vt. Stat. Ann. tit. 15,
1206. We are bound by that holding. See 28 U.S.C. 1738A(a) and (g).
Furthermore, Code 28 U.S.C. 1738A(c)(2)(A)(ii) sanctions the Vermont court's
exercise of jurisdiction. That subsection applies where a state "had been the child's home State
within six months before the date of the commencement of the proceeding and the child is absent
from such State because of his removal or retention by a contestant or for other reasons, and a
contestant continues to live in such State." Id. The parties lived together in Vermont until
September 2003, when Lisa and IMJ moved to Virginia. Janet continued to live in Vermont.
Lisa commenced the Vermont proceeding to dissolve the civil union in November 2003, two
months after Vermont ceased to be IMJ's "home state, due to her having been removed from that
state" by Lisa.
Because the Vermont court acquired jurisdiction over the issues of custody and visitation,
subsections (g) and (h) of the PKPA governed the trial court's ability to entertain Lisa's petition.
Those subsections read:
A court of a State shall not exercise jurisdiction in any
proceeding for a custody or visitation determination commenced
during the pendency of a proceeding in a court of another State
where such court of that other State is exercising jurisdiction
consistently with the provisions of this section to make a custody
or visitation determination.
A court of a State may not modify a visitation
determination made by a court of another State unless the court of
the other State no longer has jurisdiction to modify such
determination or has declined to exercise jurisdiction to modify
such determination.
28 U.S.C. 1738A(g) and (h).
The proceeding in the Vermont court was pending when Lisa filed her petition in the trial
court. The Vermont court was then exercising its jurisdiction under Vermont law and
consistently with the provisions of the PKPA. Thus, subsection (g) applied. The Vermont court,
by virtue of its June 17, 2004 and July 19, 2004 orders, continued to exercise jurisdiction, giving
application to subsection (h). Therefore, under a "plain meaning" statutory analysis, the trial
court lacked authority to exercise jurisdiction based upon Lisa's custody and visitation action in
Virginia or to modify the custody and visitation orders of the Vermont court.
2. Lisa's Position
Lisa posits three arguments why the PKPA did not preclude the trial court from
exercising jurisdiction over her petition.
a. Application of Vermont Law
First, Lisa argues that "to the extent the Vermont order constitutes a visitation
determination, the Virginia court properly exercised jurisdiction because the Vermont order was
not properly made." Specifically, Lisa contends the Vermont court could not grant "parent child
contact" to Janet because it did not first determine that Janet was a parent. The Vermont
Supreme Court rejected this argument. Miller-Jenkins, __ A.2d at __, 2006 Vt. LEXIS 159, at
** 55. Furthermore, Lisa makes this contention despite the fact that she alleged in her
"Complaint for Civil Union Dissolution" that IMJ was "the biological or adoptive child[] of said
civil union," and despite the fact that the Vermont court in its June 17, 2004 order specifically
found that IMJ was "the minor child of the parties."
Lisa cites no authority, and we know of none, that permits us to rule that the supreme
court of another state incorrectly interpreted its own law. The contrary is well established: "This
Court has uniformly professed its disposition, in cases depending on the laws of a particular
State, to adopt the construction which the Court of the State have given to those laws."
Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 159 (1825).
b. Custody or Visitation Determination
Second, Lisa argues: "Even if the Vermont court properly made an initial custody
determination within the meaning of the PKPA, the Virginia court properly exercised jurisdiction
over the parentage action filed in Virginia." Specifically, Lisa contends the Virginia parentage
action is not a custody or visitation determination per the PKPA. Yet, Lisa's petition to the trial
court prays that she be adjudicated as having "sole parental rights" over IMJ and that Janet's
claim to "parental rights" be adjudged "nugatory, void, illegal and/or unenforceable."
Lisa's complaint in the Vermont court asserted that IMJ was "the biological or adoptive"
child of the civil union. She asked that court to award Janet "suitable parent/child contact" and
to "award payment of suitable child support money." She thus submitted the determination of
IMJ's parentage to the jurisdiction of the Vermont court. Its resolution of that issue has been
affirmed by the Vermont Supreme Court and is final.
Whatever semantical machinations are involved, any common understanding of the term
"parental rights" includes the right to custody, see Szemler v. Clements, 214 Va. 639, 643, 202
S.E.2d 880, 884 (1974) ("Parental rights of custody are founded upon the strong presumption
that the best interests of the child will be served by placing it in the custody of its natural
parents."), and visitation, see Peter N. Swisher, Lawrence D. Diehl & James R. Cottrell, Virginia
Practice Series: Family Law: Theory, Practice, and Forms 15.8 (2004 ed.) ("The right of a
non-custodial parent to the company and society of his or her child is well established. Barring
gross unfitness which jeopardizes the well being of the child, visitation is a presumed
entitlement."). See also L.A.M. v. State, 547 P.2d 827 (Alaska 1976). We therefore reject the
contention that Lisa's "parentage action" is not a custody or visitation determination embraced
by the PKPA.
c. DOMA and the MAA
Third, Lisa argues: "Even if the Vermont court properly made an initial custody
determination within the meaning of the PKPA, and the Virginia order is somehow construed as
a visitation or custody determination, the Virginia court properly exercised jurisdiction over the
matter by virtue of the federal Defense of Marriage Act and the [Virginia] Marriage Affirmation
Act."
DOMA reads:
No state, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or right or claim arising from such
relationship.
28 U.S.C. 1738C.
Lisa argues that DOMA, enacted in 1996, effectively trumps the PKPA, enacted in 1980,
thus enabling the trial court to exercise jurisdiction over Lisa's petition. We disagree.
Lisa cites no authority holding that either the plain wording of DOMA or its legislative
history was intended to affect or partially repeal the PKPA. Therefore, any Congressional intent
to repeal must be by implication. However, "[r]epeal by implication is not favored and the
firmly established principle of law is that where two statutes are in apparent conflict, it is the
duty of the court, if it be reasonably possible, to give to them such a construction as will give
force and effect to each." Scott v. Lichford, 164 Va. 419, 422, 180 S.E. 393, 394 (1935).
We do not read the two statutes to conflict. They can be reconciled. In analyzing the
statutes, we are mindful that "[t]he primary objective of statutory construction is to ascertain and
give effect to legislative intent. Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337,
338 (1983). The plain, obvious, and rational meaning of a statute is to be preferred over any
curious, narrow, or strained construction. Id." Commonwealth v. Zamani, 256 Va. 391, 395,
507 S.E.2d 608, 609 (1998). As we have noted, "'Congress' chief aim in enacting the PKPA
was to extend the requirements of the Full Faith and Credit Clause to custody determinations.'"
Scott, 30 Va. App. at 187, 516 S.E.2d at 231 (quoting Thompson, 484 U.S. at 183). DOMA
has two primary purposes. The first is to defend the institution of
traditional heterosexual marriage. The second is to protect the
right of the States to formulate their own public policy regarding
the legal recognition of same-sex unions, free from any federal
constitutional implications that might attend the recognition by one
State of the right for homosexual couples to acquire marriage
licenses.
H.R. Rep. No. 104-664, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. See also id. at
18, reprinted in 1996 U.S.C.C.A.N. at 2922 ("It is surely a legitimate purpose of government to
take steps to protect the right of the people, acting through their state legislatures, to retain
democratic control over the manner in which the States will define the institution of marriage.
[DOMA] advances this most important government interest.").
Nothing in the wording or the legislative history of DOMA indicates that it was designed
to affect the PKPA and related custody and visitation determinations. Simply put, DOMA
allows a state to deny recognition to same-sex marriage entered into in another state. This case
does not place before us the question whether Virginia recognizes the civil union entered into by
the parties in Vermont. Rather, the only question before us is whether, considering the PKPA,
Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ's
custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to
render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the
Vermont court. She placed herself and the child before that court and laid before it the assertions
and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum
precluded the courts of this Commonwealth from entertaining countervailing assertions and
prayers.
Lisa argues that the MAA forbade the trial court to extend full faith and credit to the
orders of the Vermont court. The MAA reads:
A civil union, partnership contract or other arrangement between
persons of the same sex purporting to bestow the privileges or
obligations of marriage is prohibited. Any such civil union,
partnership contract or other arrangement entered into by persons
of the same sex in another state or jurisdiction shall be void in all
respects in Virginia and any contractual rights created thereby shall
be void and unenforceable.
Code 20-45.3.
We need not, and do not, decide whether the MAA applies to this case. If it does, it is
preempted by the PKPA. See, e.g., Meade, 812 F.2d at 1476 (PKPA preempts conflicting state
law).
B. The UCCJEA
Janet also contends the trial court erred in holding that the UCCJEA permitted it to
exercise jurisdiction in this case. Having determined that the PKPA is the controlling law in this
matter and that the PKPA preempts conflicting state law, we need not address that issue.
III. CONCLUSION
We hold that the trial court erred in failing to recognize that the PKPA prevented its
exercise of jurisdiction and required it to give full faith and credit to the custody and visitation
orders of the Vermont court. By so holding, we do not address whether Virginia law recognizes
or endorses same-sex unions entered into in another state or jurisdiction. We do not comment on
the constitutionality, viability or breadth of-the UCCJEA and the MAA. We do not consider
the merits of the rulings of the Vermont court. Those questions are not before us. The issue
before us is the narrow one of jurisdiction. By filing her complaint in Vermont, Lisa invoked the
jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction. The
PKPA forbids her prosecution of this action in the courts of this Commonwealth. Accordingly,
we vacate the orders of the trial court and remand this matter to the trial court with instruction to
extend full faith and credit to the custody and visitation orders of the Vermont court.
Vacated and remanded.
The trial court, in the September 9, 2004 order, also certified the matter for an
interlocutory appeal to this Court pursuant to Code 8.01-670.1. Janet noted an appeal. Record
No. 2192-04-4. By order entered January 6, 2005, we dismissed that appeal, finding that we
lacked jurisdiction pursuant to either Code 8.01-670.1 or Code 17.1-405.
The Uniform Child Custody Jurisdiction Act, since superceded by the UCCJEA.
"The family court shall have jurisdiction over all proceedings relating to the dissolution
of civil unions."
While there is much discussion of parental rights in reported
cases, few cases attempt to define those rights making discussion
difficult. A careful review of the literature, including case law,
treatise and law review, indicates that the following have been
listed as "parental rights" protected to varying degrees by the
Constitution:
(1) Physical possession of the child which, in the
case of a custodial parent includes the day-to-day
care and companionship of the child. In the case of
a non-custodial parent, possession is tantamount to
the right to visitation.
(2) The right to discipline the child, which includes
the right to inculcate in the child the parent's moral
and ethical standards.
(3) The right to control and manage a minor child's
earnings.
(4) The right to control and manage a minor child's
property.
(5) The right to be supported by an adult child.
(6) The right to have the child bear the parent's
name.
(7) The right to prevent an adoption of the child
without the parents' consent.
L.A.M., 547 P.2d at 832 n.13.