Defending the family

Miller v. Jenkins Points and Authorities Court Memorandum

The following is the text of the memorandum filled on behalf of Lisa Miller, an ex-lesbian fighting to maintain custody of her daughter. Public Advocate attorneys contributed in drafting this memorandum.


VIRGINIA: IN THE FREDERICK COUNTY CIRCUIT COURT

LISA MILLER-JENKINS,
Petitioner,

VS. IN CHANCERY NUMBER: CH04-280
JANET MILLER-JENKINS,
Respondent.

PETITONER'S MEMORANDUM OF
POINTS & AUTHORITIES REGARDING JURISDICTION

I. INTRODUCTION

On July 1, 2004, Petitioner, Lisa Miller-Jenkins, filed a Petition requesting this Court to adjudicate whether she is the natural parent of her minor child, Isabella Miller-Jenkins, and should the Court find her to be the sole biological parent, to confirm her custodial rights to raise her daughter in accordance with the law. Respondent's jurisdiction-based challenge turns on the distinction between visitation and parentage orders. In both Vermont and Virginia, visitation orders are distinct creatures from parentage orders, and it does not follow that when, as here, that the Vermont visitation order rests on "presumptions" of parentage, that parentage has, ipso facto, been adjudicated. In the absence of any binding evidentiary determinations or concomitant support award, the issue of parentage is not res judicata and either party is free to raise it in any court having actual jurisdiction over the parent and child. Here, parentage was never adjudicated in Vermont (indeed, it was never plead), as reflected by the fact that no corresponding child support award was ever entered, and actual jurisdiction and venue lie in Frederick County, Virginia, where the child was born and where she and her mother have resided for over six (6) months prior to the filing of this case. Accordingly, this Court has jurisdiction to consider this case, and no proceedings in any other state require its dismissal or removal.
II. SYNOPSIS OF ARGUMENT
Jurisdiction in this case is resolved on the following three bases:
1. Virginia's parentage statute requires that this Court take jurisdiction of this case.
2. Virginia's UCCJEA (VA Code §20-146.1 et seq.) also gives the Court jurisdiction in this case.

3. The order entered by the Vermont court respecting the civil union is neither a UCCJEA order, a "custody" order, nor a "parentage" order, does not divest this Court of jurisdiction, and as a civil union order, is not entitled to full faith and credit.

III. DISCUSSION
A. VIRGINIA'S PARENTAGE STATUTE GOVERNS JURISDICTION

Petitioner's claim before this Court arises exclusively under Virginia's parentage act, VA Code
§20-49.1 et seq. (Chapter 3.1 of Title 20 of the Code of Virginia). Hence, it stands to reason that jurisdiction must be determined in accordance with the act, which creates the cause of action. The chapter contains a jurisdiction provision, which states:
The circuit courts and the juvenile and domestic relations district courts shall have concurrent original jurisdiction of cases arising under this chapter. The determination of parentage, when raised in any proceeding, shall be governed by this chapter.

VA Code §20-49.2 (double emphasis added). Thus, this Court must look to the parentage statute

to decide parentage claims.

1. Virginia's Parentage Statute Is Constitutional
As stated in the annotations to the foregoing Code section, "[t]he statutes governing this case provide for notice, the right to be heard and to present evidence, and a fair and impartial decision; they constitute no impediment to due process" citing Watkins v. Commonwealth, No. 0220-89-3 (Ct. of Appeals May 15, 1990). Accordingly, the parentage statute does not suffer any impediment that prevents its application in this case.
2. Virginia's Parentage Statute Clearly Mandates Jurisdiction
The interpretation of the parentage law is a matter of statutory interpretation, the rules of which are well established. "[T]he courts have but one object, . . . and that is to ascertain the will of the legislature, the true intent and meaning of the statute, which are to be gathered by giving to all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious and just in their operation." Virginia Importers, Ltd. v. Kirin Brewery of America, LLC, 41 Va. App. 806 at 822 citing Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914). "Every part of a statute is presumed to have some effect and no part will be treated as meaningless unless absolutely necessary." Id. At 823 citing Sims Wholesale Co., 251 Va. at 405, 468 S.E.2d at 909. "Where a particular construction of a statute will result in an absurdity, some other reasonable construction which will not produce the absurdity will be found." Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942)). Additionally, "when new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the courts." Burke v. Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 745-46 (1999) (internal quotation omitted). This Court, then, should interpret the entire parentage statute according to its plain meaning.
a) "Shall" is Mandatory
It is well settled that when the word "shall" appears in a statute it is generally used in an imperative or mandatory sense, and not in an advisory or discretionary sense. Last v. Va. State Bd. Of Medicine, 14 Va. App. 906, 912 (1992) citing Mayo v. Virginia Dep't of Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761 (1987), Huffman v. Kite, 198 Va. 196, 203, 93 S.E.2d 328, 332 (1956). Accordingly, this Court must decide the parentage question pursuant to the parentage statute.
b) "Any case" means "each" or "all" cases
In Department of Med. Assistance Serv. v. Beverly Healthcare, 41 Va. App. 486, 495, 585 S.E.2d 858, 871, the Virginia Court of Appeals examined a statute that contained the words "any person" and "any case." There, the Court held that the ordinary meaning of the word "any" effectively meant "each," and thus the statute applied to all cases. Id. The result is the same here: when VA Code §20-49.2 states that the Court "shall" have jurisdiction of "any" case to determine parentage, it means that this Court must adjudicate all cases seeking a parentage determination, including this case. Hence, Respondent has no rounds to direct the Court to any other statue, or any foreign laws, in order to decide Petitioner's parentage claims.

3. This Court Has Actual Jurisdiction Over The Parties
In order for a court's exercise of jurisdiction to satisfy due process requirements, a non-resident defendant must have sufficient "minimum contacts" with the forum state, such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (citation omitted). In applying this standard, the constitutional benchmark is 'whether the defendant purposefully established minimum contacts in the forum State.' Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (internal quotes omitted). Furthermore, a defendant should be able to anticipate being brought to court in the forum, in that contacts "must be directed at the forum state in more than a random, fortuitous, or attenuated way." [Citations omitted.] In essence, a defendant must have minimum contacts with the forum state, and a court's exercise of jurisdiction must be reasonable. ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 176-77 (4th Cir. 2002) . Due process is satisfied when a non-resident "defendant purposefully avails [himself] of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958), such that, by that act he "has clear notice that [he] is subject to suit there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
The Frederick County Circuit Court clearly has jurisdiction over the Petitioner, who is a resident and domiciled in Frederick County. The Court also has jurisdiction over Respondent, who, by her own admission, consented to the artificial insemination of Petitioner in Virginia, consented to the birth of the minor child in Virginia, lived in Virginia, and who drove or permitted the Petitioner to return to this jurisdiction with Petitioner's child. Virginia Code §20-49.2 specifically vests this Court with subject matter jurisdiction to consider the question of parentage. Hence, there exists no recognizable challenge to this Court's actual exercise of jurisdiction over either the parties or the question on issues of parentage.

B. THE UCCJEA ALSO GIVES THIS COURT JURISDICTION
1. Petitioner is first in time in this Court based on Respondent's admissions.
Even if this case is viewed as a "custody case" instead of a parentage case, the UCCJEA does not preclude jurisdiction in this Court. The jurisdiction requirements of Virginia's Uniform Child Custody Judgment Enforcement Act are contained in VA Code §20-146-12, and state, in pertinent part:
[A]court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
1. This Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth; (emphasis added).
2. A court of another state does not have jurisdiction under subdivision 1… and (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence and (ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training, and personal relationships …. (emphasis added)

In this case, the Court would have jurisdiction to entertain the present matter as a custody proceeding in lieu of a determination of parentage even in light of the minimal facts stipulated by the Respondent in the affidavit submitted on her behalf. First, it is undisputed that the child was conceived and born in Virginia. It is undisputed that the child and her biological parent are currently residents of Virginia and have been residents and domiciliaries of Virginia since September 2003: over six (6) months prior to the commencement of this case. It is undisputed that at the time the Vermont action was filed to dissolve the civil union, neither Petitioner nor her daughter were Vermont residents. It is undisputed that Vermont has never entered an order ruling that Respondent is the parent of Isabella or that she is a "person acting as a parent," custodial or otherwise. Accordingly, this Court has jurisdiction to entertain this case under a plain reading of the UCCJEA jurisdictional statute because Petitioner fulfills its express jurisdictional requirements.1
a) This Court Has the Power to Modify Vermont's Order
Pursuant to VA Code Section 20-146.14, a court of this Commonwealth can change or amend another state's custody determination if Virginia could have made an initial custody determination under Va. Code Section 20-146.12 (A)(1) or (A)(2) and either (1) the Virginia court is the more convenient forum; or (2) neither the child, her parent, nor any person acting as a parent resides in the other state. In this case, jurisdiction under both Va. Code Section 20-146.12 (A)(1) or (A)(2) have been satisfied because the mother and her daughter have been residents of Virginia for more than six months prior to the commencement of this case and all significant contacts are in Virginia. This Court is also the more convenient forum, since all of the witnesses and family members either are Virginia residents or have close ties to the Commonwealth. As discussed herein, Respondent is not a parent, and there is no evidence before this court (including in her attorney's affidavit) that she is now or has ever been a person acting as a parent. Accordingly, this Court has the power to modify the Vermont order even were it to be deemed a custody determination.
2. Respondent has failed to follow the Provisions of the UCCJEA
The UCCJEA requires a party to follow instructions in order to challenge the jurisdiction of this Court. As stated in Petitioner's previous briefs (which are reincorporated and re-used by reference), Respondent has failed to follow the very statutes upon whose alleged operation she relies. Notwithstanding the requirements of VA Code §20-146-20, Respondent has not given any statement under oath, she has not informed the Court of any proceeding that would "affect the current proceeding," namely this parentage proceeding. See affidavit of Ali Arrain, attached to Respondent's Demurrer, which fails to refer to any other parentage proceeding in any court, as required by VA Code §146-20(2).2
C. THE VERMONT ORDER IS NOT A CUSTODY OR PARENTAGE ORDER
AND IS NOT ENTITLED TO FULL FAITH AND CREDIT

The Vermont court's temporary "parental rights and responsibilities" order is not a custody order. This is evident from the fact that no Vermont order ever awarded custody, any child support, provided for health insurance, or in any way obligated the Respondent to provide for the health and welfare of Isabella. Although these elements are not "required" for custody, they are certainly customary, and their absence in the Vermont order is highly relevant. It is undisputed that Respondent has not provided any child support in response to any order of the Vermont court. Similarly, no Vermont court order established the parentage of Isabella. Respondent's sole argument that Vermont has "ordered" that she is a parent is based on a legal presumption of parentage that has never been adjudicated or even challenged. Under Vermont law, moreover, the legal presumption of parentage claimed by a spouse is always open to challenge, and in this case, because the Vermont court would not entertain the challenge, Petitioner brought that challenge here, as she had a right to do under the laws of both states. Finally, the Vermont orders (2 total) need not be accorded full faith and credit because the General Assembly, acting under the authority of a federal statute, have precluded their force and effect as against the public policy of this Commonwealth, and because the civil union which gave rise to the Vermont orders was void ab initio since the parties perpetrated a fraud by civilly uniting in a state in which they were not then residents or domiciliaries.
1. The Vermont Orders Are Not Parentage Orders

The two (2) Vermont court's orders of June 17, 2004 and July 19, 2004 have been issued solely as a result of a petition to dissolve a civil union between persons of the same sex. Respondent relies upon Vermont Title 15, Chapter 23, Section 1204 Civil Union (15 VSA Section 1204 et seq.), a copy of which is attached. This statute provides that civil union partners have the same rights and responsibilities generally granted to married persons. 15 VSA Section 1204 (f) provides that the rights of a civil union partner shall be the "those of a married couple, with respect to a child of whom either spouse becomes the natural parent during a marriage."
The Vermont Parentage Proceedings Act governs establishing parentage in Vermont. Significantly, like the Virginia parentage chapter, the Vermont statute appears to be aimed at resolving questions surrounding in vitro fertilization and out-of-wedlock conception, and (again like Virginia's parentage statute) is codified separately from divorce and civil unions. The Vermont Supreme Court has stated that parentage may not be inferred in an action bought under any other statute other than the parentage act. Lawrence v. Limoge, 149 Vt 569, 572-573, 546 A.2d 802 (1988). In light of this case, the Vermont legislature enacted 15 VSA Section 308 of Sub-Chapter 3A, which gives a "rebuttable presumption" of parentage to a "husband and wife" who are "legally married to each other." At best, Respondent has a Vermont presumption of parentage. This "presumption," moreover, is open to challenge. No Vermont orders addressing or confirming her status as a parent have been submitted to this Court. Accordingly, the issue of parentage is not res judicata in either state, and Petitioner, even under Vermont law, was and is free to challenge the presumption in either this Commonwealth or Vermont.
2. Vermont Orders Are Not Custody Orders
The Virginia UCCJEA defines "child custody proceeding" "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue…." Va. Code Section 20-146-1. It further defines "physical custody" as "the physical care and supervision of a child." Id. The UCCJEA defines a person acting as a parent as "a person, other than a parent, who has (i) physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding and (ii) been awarded legal custody by a court or claims a right to legal custody under the laws of this Commonwealth."
The Vermont orders do not address or fulfill any of these definitions.3 Rather, the June 17, 2004 Vermont Order restricts its ambit to "parental rights and responsibilities," which is an alien term to Virginia law and the UCCJEA. The Vermont order avoids using the key words "custody," "physical custody," and "physical care and supervision." Hence, the Vermont court did not address "custody" as defined by the UCCJEA. Second, the Vermont court orders fail to address whether Petitioner or Respondent is a "parent." No Vermont orders finds that Respondent is "a person other than a parent" (and indeed, Respondent claims to be a an actual parent), or that she ever had physical custody of Isabella for a period of six consecutive months, or that she was deemed a parent under the laws of this Commonwealth. Because the Vermont orders do not address these required elements of the UCCJEA, they are not "custody orders" and cannot be asserted to bar Petitioner's claims.
3. The Vermont Orders Are Not Entitled To Full Faith & Credit
Title 28 U.S.C. § 1738 implements Article 4, § 1 of the United States Constitution, (the "Full Faith and Credit Clause"), and States to recognize and accord the same "full faith and credit" to judicial proceedings as they have "by law or usage in the courts of the state" where they originated. Enforcing the Vermont orders as parentage or custody orders in this tribunal would require this Court to substitute a public policy position in place of established public policy of the Commonwealth of Virginia against the treatment of non-marital civil unions as tantamount to marriage as well as the Commonwealth's public policy supporting marriage as an institution between one man and one woman and not an institution between two persons of the same sex. The Full Faith and Credit clause does not require Virginia to elevate Vermont's public policy above its own, nor, as Respondent's counsel asserted, does it prevent a state from looking behind a judicial decree to ensure that it is acceptable.
a) This Court can examine the Vermont orders in light of this Court's Protocol
Although Virginia has not has the previous opportunity to examine a civil union decree, Virginia has had the opportunity to examine foreign parentage decrees to determine if they are enforceable in the Commonwealth. Significantly, Virginia does not accept a foreign judicial determination of parentage from another state without first determining whether the foreign Court had jurisdiction over the proceedings and to ensure the procedures used for establishing paternity were proper. See VA Code §32.1-257(D), requiring presumptive fathers to "apply to an appropriate court of the Commonwealth for an order reflecting that such court has reviewed such [foreign] judgment of paternity and has determined that such judgment of paternity was amply supported in evidence and legitimate for the purposes of Article IV, Section 1 of the United States Constitution." If this Court could examine a foreign request to confirm paternity, it can look behind the Vermont orders to determine if it complies with established law and public policy. As stated above, the two (2) Vermont orders do not ever establish parentage even under Vermont's own statutes.
b) This Court is not required to substitute Vermont's laws in violation of Virginia law
The Full Faith and Credit Clause does not require one State to apply another State's law in violation of its own legitimate laws. See Pacific Employers Ins. Co. v. Industrial Accident Comm., 306 U.S. 493, 505 (1939). In Franchise Tax Board of California v. Hyatt, 123 S. Ct. 1683, 1687 (2003), the United States Supreme Court held that while the forum state is usually required to recognize valid Court judgments from other states, it is not compelled by Full Faith and Credit to "substitute the statutes of other states for its own statutes dealing with the subject matter concerning which it is competent to legislate." The Commonwealth is competent to legislate whether an order dealing with civil union dissolution is enforceable for any purpose. The United States Supreme Court, in Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 505 (1939), affirmed the proposition that "full faith and credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it." See also, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 813-819 (1985) (neither the Due Process Clause nor the Full Faith and Credit Clause requires a state "to substitute for its own [laws], applicable to persons and events within it, the conflicting statute of another state."); Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988) (the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. In Hood v. McGehee, 237 U.S. 611 (1915), the United States Supreme Court concluded that the state of Alabama did not fail to give full faith and credit to a Louisiana adoption decree, when it refused to allow the adopted children to inherit property in Alabama. The Court held that "there is no failure to give full credit to the adoption of the plaintiffs in a provision denying them the right to inherit land in another State." Id.at 615. While the state of Alabama recognized the adoption of the children in Louisiana, it could not be forced to change its laws to allow the adopted individuals to inherit land in Alabama. In this case, enforcing the Vermont orders in the manner Respondent requests would provide additional benefits to out-of-state same sex couples than would be granted to those in state. Respondent is simply not entitled to receive greater rights than similarly situated individuals within the Commonwealth. She would not be entitled to any presumption of parentage here, and she should not receive any such presumption solely by virtue of being a Vermont domiciliary.
c) Comity does not require enforcement of the Vermont orders
In Doulgeris v. Bambacus, Adm'r, 203 Va. 670 (1962), the Virginia Supreme Court considered whether Virginia testacy laws should apply to an adoption that occurred in the Kingdom of Greece. The Virginia Court found that the same principle applies whether recognizing adoption decrees of another state or foreign country. Id.at 673. The Virginia Supreme Court held that "the recognition of such foreign adoption decrees is based upon comity, and not upon the full faith and credit clause of the Federal Constitution." Id. (emphasis added). Critically, the Court looked to see whether "the recognition of that status as fixed by the foreign decree is not inconsistent with, and will not offend, the laws of the public policy of the forum." Id., quoting 2 Am Jur. 2d, Adoption, § 114, p. 956.
If comity, which is the provision of deference and accommodation afforded to another state's law, controls adoption, then the same doctrine logically extends to its cognate, parentage. Requiring the Commonwealth to recognize the parentage of Respondent in this case would commit the Commonwealth to a policy of equivalency between heterosexual couples and same-sex couples, civilly united couples and married couples. If there are to be changes in this public policy of the Commonwealth, the source of those changes must be the General Assembly. This Court should reject the Respondent's attempt to circumvent Virginia laws and public policy.
d) Virginia expressly forbids enforcement of the Vermont orders
Virginia Code §20-45.3, states:
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.

(Emphasis added). As stated, the Full Faith and Credit Clause does not require one State to apply another State's law in violation of its statutes and public policy. Regardless of whether Respondent is a "parent" of Isabella in Vermont on the strength of her former relationship with Isabella's mother, the civil union affords her no rights that can be enforced in this Commonwealth, and no proceeding dissolving a civil union can operate to divest this court of jurisdiction to determine parentage of Virginia residents.4
e) Federal Law does not afford full faith and credit to the Vermont orders
In 1996, Congress enacted the "Defense of Marriage Act." Codified in part as Title 28 U.S.C. Section 1738 C, this portion of the enabling statute for the full faith and credit clause states:
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 a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship. (Emphasis added).

This statute has been found constitutional by those federal courts that have reviewed it. See

Mueller v. Comm'r of Internal Revenue, 39 Fed Appx. 437, 2002 U.S. App. Lexis 13063 (7th Cir. June

2002) (unpublished), see also Mueller v. Comm'r of Internal Revenue, T.C. Memo 20012001-274, 2001

Tax Ct. Memo LEXIS 310 (October 2001) at *4-5. Clearly, this statute provides this Court with

jurisdiction to consider this case, even if another state has ruled on the same issues pursuant to a same-sex

civil union statute.

f) The Vermont Order is not entitled to enforcement because it is a nullity
It is undisputed that at the time of the parties' civil union in December 2000, they were residents and domiciliaries of the Commonwealth of Virginia. Then as now, Virginia prohibited same-sex unions. VA Code §20-45.2 (enacted 1975). The parties went to Vermont to obtain a same sex civil union in order to circumvent Virginia law. Once civilly united, they returned to Virginia, and resided here until July 2002. Petitioner became pregnant via in vitro fertilization in 2001 in Virginia, and gave birth to Isabella in Virginia. The parties never repeated their civil union during the period when they were both residents of Vermont, which period ended on or about September 13, 2003.
The civil union was void ab initio because it was entered into by a deliberate attempt to evade and circumvent the law of Virginia, the state of domicile of both parties. See Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 866-69 (1878); Heflinger v. Heflinger, 136 Va. 289, 305-06 (1923) ("No State will permit its citizens to violate its laws by such evasions"). Indeed, it appears questionable whether Vermont had any jurisdiction to unite the parties in a civil union, the parties having no contact with Vermont other their physical presence at a civil union ceremony. See Vaughn v. Hufnagel, 473 S.W.2d 124, 125 (Ky. 1971) ("It takes more than riding across the Ohio river to make [an Ohio common law marriage] legal [in Kentucky]").
Even if Vermont acquired jurisdiction in the time that it took the parties to enter into a civil union, Vermont cannot project its public policy regarding same-sex unions upon the people of Virginia, directly contrary to Virginia Code Section 20-45.2. Virginia courts have long recognized that even if a marriage is valid under the law of the state where the marriage took place, that marriage is void in Virginia if it is contrary to the State's public policy. See Heflinger v. Heflinger, 136 Va. 289, 303 (1923); Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 430 (1939) ("One state ... cannot force its own marriage laws, or other laws, on any other state, and no state is bound by comity to give effect in its courts to the marriage laws of another state, repugnant to its own laws and policy").
Accordingly, the Vermont civil union entered into by the parties is void in Virginia as contrary to public policy. And, because that civil union is void, there can be no recognition of any legal rights arising out of that union, "[t]here [being] no authority for the parties by their actions outside of the law to invest the [Virginia] courts with power to treat a relationship as a lawful" union. Kleinfield v. Veruko, 7 Va. App. 183, 190 (1988). Thus, no "rights" whatsoever - whether they be claims of spousal support, equitable distiibution of property, or child custody - can possibly flow from a same-sex civil union, but the parties must be treated by the Virginia courts "as if no [civil union] had ever been performed." See Hager v. Hager, 3 Va. App. 415, 417 (1986); Kleinfield, supra, 7 Va. App. at 190. Any action taken by the Vermont courts premised upon the validity of a civil union under Vermont law are, therefore, null and void in Virginia. Consequently, the UCCJEA upon which Respondent has relied does not apply.
g) This Court has jurisdiction because Vermont is a forum no conveniens

In the present case, the mother lives in Virginia with her child. Both parties' families are residents of Virginia. The child's grandparents live in Virginia. The child's physicians and virtually all of the witnesses who would be called to testify as to parentage issues are residents of Virginia. The UCCJEA provides for transfer of the case on the basis of forum non conveniens, and the Court should so find for the reasons set forth in Va. Code 20-146.18.
IV. CONCLUSION
WHEREFORE, for the foregoing reasons Petitioner respectfully requests that Respondent's demurrer be overruled, that she be ordered to file an answer and grounds of defense within ten days, together with all such further relief as the Court shall deem meet and proper.
LISA MILLER-JENKINS

By: ______________________
Counsel

Peter Thos. Hansen, Esquire (VSB # 34819)
Phillip S. Griffin, II, P.C.
102 South Kent Street
Winchester, VA 22601
(540) 667-4647
Counsel for Petitioner


Certificate of Service

The undersigned does hereby certify that on this 20th day of August 2004, the foregoing Petitioner's Memorandum of Points and Authorities was sent via facsimile and mailed by United States Postal Service, first-class, postage prepaid to:

Joseph R. Price, Esquire

Arent Fox PLLC
1050 Connecticut Ave., N.W.
Washington, D.C. 20036-5339

________________________
Peter Thos. Hansen, Esquire

1 If this Court's parentage determination were a "child custody determination," then it would have exclusive jurisdiction per VA Code §20-146.13.

2 Petitioner assumes arguendo that Arrain's affidavit is admissible against her. As stated previously, it is not. It is also inaccurate. For example, Arrain refers to a Vermont order allegedly titled "Temporary Custody Order" (id. at Paragraph 12). The Vermont Order is not in fact titled "Custody" order.

3 It bears repeating that Respondent has failed to file the complete Vermont record or any of the orders under triple seal as required by Va. Code Sections 20-146.20 and 26 and as requested by this Court during the August 13, 2004 hearing.
4 Petitioner reiterates her previous argument that Va. Code 20-45.3 also prevents this Court from abstaining from jurisdiction on the basis of the UCCJEA, because the Vermont UCCJEA statute is not "similar" to Virginia's statue, as required by pursuant to §20-146.13(A), since as Respondent asserts, the Vermont court can entertain a same sex civil union "custody proceeding" whilst this Court could not.
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