Information Alert: Disappointing decision by state Supreme Ct.

Victoria Cobb, President
Friday, June 6, 2008

The state Supreme Court today announced that it will not reverse a lower court ruling in the case of Isabella Miller, the young child caught in a custody dispute between Virginia and Vermont.

As you know, Lisa Miller and Janet Jenkins entered into a Vermont Civil Union. Lisa, through artificial insemination, gave birth to Isabella. When Lisa left the lesbian lifestyle, she moved to Virginia. Prior to that, she and Janet had the civil union in Vermont dissolved and entered into a visitation agreement. After moving to Virginia, Lisa filed for sole custody. The case has been a battle over jurisdiction between Virginia and Vermont courts ever sense.

In November 2006 the Virginia Court of Appeals decided that the Vermont custody order took precedent. The Court based its decision on the federal Parental Kidnapping Prevention Act (PKPA), arguing that because the proceedings began in Vermont, the Vermont courts had jurisdiction. (PKPA is a federal law designed to keep a parent from taking a child to a different state to get a better custody arrangement if they don’t get a favorable ruling in the state in which the live.) The decision took place prior to Virginia’s marriage amendment taking affect, but dismissed the federal Defense of Marriage Act and the Commonwealth's Marriage Affirmation Act.

Lisa eventually appealed that decision to the state Supreme Court.

Today, the court rejected Lisa’s appeal, not on the merits of the case, but because she “failed to perfect an appeal from that decision in the manner required by law.” Basically, the court exercised extraordinary judicial restraint. It makes no determination on the implication of the marriage amendment at all. In fact, Chief Justice Hassell states clearly that he does “not believe that this decision (the lower court’s) was correctly decided.”

The Court makes it very clear that judicial restraint binds them from ruling on the impact of Virginia’s marriage amendment in this case. As conservatives who have long argued against judicial activism, we have to respect that decision.

We are saddened, however, that a little girl is being forced into a situation that is clearly not in her best interest.

This is a complicated case. Because this decision is narrow and relates only to the specific facts of this case and is not ‘binding precedent’ we are hopeful that any future Isabella’s will not have to suffer the same fate.

It should be noted that earlier this week the Virginia Court of Appeals upheld the ‘fundamental right’ of a biological parent to raise their child without the interference of a third party. The case involved is striking similar. The case, Stadter v. Siperko, involved a lesbian couple, one of whom had a child through artificial insemination. The couple split and the partner who was not the biological parent sued for visitation. The court rejected their claim to “psychological” or “de facto” rights to the child and granted full custody to the biological mother. It is interesting that there has been no media coverage of this decision – one that protects the fundamental right of parents, and rejects the argument of homosexual activists.

Clearly, the legal implications of marriage amendments, defense of marriage acts, and the aggressive actions of same sex marriage advocates are far from being determined. It is unfortunate that with California, New York and New Jersey working toward issuing same sex marriage licenses, many more Isabella’s will suffer before a final verdict is rendered.

Liberty Counsel, Lisa Miller’s representative, is considering appealing to the U.S. Supreme Court.