Virginia Appeals Court treats same sex union the same as it would a heterosexual marriage

The Virginia Court of Appeals overturned a local Virginia court and remanded back to Vermont a custody dispute between a lesbian couple who had entered into a civil union in that state. The ruling is a victory for gay and lesbian rights treating the dispute as it would for married heterosexual couple.

The couple had lived together in Virginia then moved to Vermont where they joined together in a civil union as allowed by Vermont law. They had a child by artificial insemination and raised the child together. However, the relationship fell apart. One partner took the child and moved to Virginia. The other partner filed for dissolution of the civil union and asked for custody of the child in a Vermont court. She was granted both but the partner in Virginia filed a motion in a Virginia court for sole custody of the child since Virginia does not recognize same sex unions as spelled out in the Virginia Marriage Affirmation Act. The local court had granted the motion.

From the L.A. Times:

A Virginia appellate court ruled Tuesday in a closely watched lesbian custody dispute that the biological mother must answer to the laws of Vermont, where she and her former partner entered into a civil union and raised a child together.

The ruling skirted a broader question key to the national debate: whether Virginia can be forced to recognize such a union sanctioned in another state.

But it was celebrated by gay and lesbian organizations across the country for treating the parental relationship as it would any heterosexual one.

Lisa Miller, who was ordered by the Vermont courts to grant her former partner visitation, is barred by the federal Parental Kidnapping Prevention Act from turning to a different state to seek a more favorable outcome, the Virginia court ruled.

"It is a big deal," said Kate Kendell, executive director of the National Center for Lesbian Rights, which filed briefs in support of the non-biological parent, Janet Jenkins.

"The fact that the court would apply that rule of law objectively and fairly to a lesbian plaintiff is an enormously important victory for not only Janet Jenkins but for any lesbian or gay parent who may stand in her shoes," Kendell said.

Miller, who now lives in Virginia, was represented by faith-based Liberty Counsel, which opposes legal rights for same-sex unions and vowed to appeal.

The group's president, Mathew Staver, called the case "the tip of the iceberg of what's to come if one state cannot define its own marriage policy and must be subservient to the same-sex marriage policy of a sister state." He noted that 27 states — Virginia among them — had passed constitutional amendments banning same-sex marriage and that many states had passed "defense of marriage" acts.

From the ACLU of Virginia:

“Ordinarily there would be no question that Vermont would retain jurisdiction in a case like this,” said ACLU of Virginia executive director Kent Willis. “There was no reason, other than bias against Vermont’s recognition of civil unions, for the Virginia courts to try to take over this case. This ruling, while simply a matter of following accepted law, is still an important step forward for gay and lesbian rights.”

The ruling can be read here.