Shocking Lesbian Custody Case

Volokh has a post about an ongoing legal battle for custody involving two state courts. Here's the backstory, from a Vermont Supreme Court ruling:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the "biological or adoptive child[]of the civil union." Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ....

At some point, Lisa decided that she was no longer a lesbian, that homosexuality was sinful and evil, and that she didn't wnat her daughter exposed to her former lover. So rather than accepting the Vermont court's decision, she filed suit in Virginia court, where they're much more anti-gay, and the Virginia court ruled that, because Virginia does not recognize the civil unions from Vermont, the Vermont ruling was irrelevant and they awarded sole custody, without visitation, to Lisa. In this effort, she was aided by religious right legal group Liberty Counsel.

Volokh points out the many reasons why the Virginia court had no legal jurisdiction in the case and why Virginia should, under Federal law, have to honor the Vermont court's ruling in the matter. The most obvious reason is that the Vermont court's ruling did not rely on the civil union status in determing the custody question. The custody issue would have been the same even if they had not been joined in a civil union; after all, unmarried heterosexual couples have children all the time and the legal basis of the custody issues remains the same regardless of whether they were married. Volokh writes:

First, despite how Lisa's lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren't married. The relevant federal statute, the Parental Kindapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to "enforce according to its terms" out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) ... (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) 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;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), "A court of a State [here, Virginia] 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 [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination").

Regardless of whether a couple is married, the legal standard for custody issues requires determining what is in the best interests of the child. And given that Janet was a full parent to the child for the first year and a half of her life, arguably the most important bonding period for parent and child, there is no question that it would be traumatic for the child to be ripped away from one of its two primary sources of emotional support.

There is no question that Lisa intended for Janet to be a full parent to the child. Janet participated in the decision to have the child, was present at the birth and was listed as a parent legally. The child was given both last names. Clearly, Lisa gave full consent to having Janet have a full parental role, then later changed her mind. The fact that she is now trying to take the child away from one of the primary caregivers that she herself set up for the child is a travesty.

The courts have long recognized something called the "psychological parent" doctrine. The idea is that, regardless of biological ancestry, a child often becomes bonded to a caregiver and it would be detrimental to the child to have them removed from that person's life. Volokh cites a South Carolina case which establishes a reasonable standard for determining when this doctrine applies:

[T]he petitioner must show ... (1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

All of those factors clearly apply in this case. This case will no doubt end up in Federal court, since we have two conflicting state court rulings. The Federal court will have to decide which ruling takes precedence, as well as which Federal statute takes precedence. Stay tuned.