LawyersUSA

Virginia courts must enforce custody and visitation orders entered by a Vermont court in connection with the breakup of a same-sex couple, the Virginia Supreme Court has ruled.

The couple entered into a civil union in Vermont and had a child by artificial insemination while residing in Virginia. They later moved back to Vermont.

When the couple split up, the biological mother sought for physical custody for herself and "suitable parent-child contact" for her partner.

A Vermont court entered an order granting the biological mother temporary legal and physical custody and her partner visitation. But when the biological mother and child moved back to Virginia, she sought sole parental rights.

The biological mother argued that the federal Defense of Marriage Act trumped the state's obligation to give full faith and credit to another state's custody determinations under the federal Parental Kidnapping Prevention Act.

But the state supreme court observed that this issue had been decided by the state court of appeals in another case in which the biological mother had sought relief from the Vermont custody order. (See "Court must credit Vermont custody order in same-sex case," Lawyers USA, Jan. 1, 2007. Search terms for Lawyers USA website: Miller-Jenkins.)

The supreme court held that that decision barred the biological mother's claims in this case.

"[W]e conclude that the 'law of the case' doctrine prevents [the biological mother] from reasserting the issues she raises in the present appeal because each of those issues was decided finally by the first Virginia appeal, which [she] failed to perfect in this court," the court said.

Virginia Supreme Court. Miller-Jenkins v. Miller-Jenkins, No. 070933. June 6, 2008. Lawyers USA No. 99310101. Click here for the full text of this opinion.