Sunday, June 15, 2008
Editorial: Breaking up is hard to do
Virginia's courts, hampered by the marriage amendment, are ill prepared to deal with residents united elsewhere who call it quits here.
From the RoundTable blog
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A majority of voting Virginians made it clear: Marriage is reserved for one man and one woman. But even a constitutional amendment can't keep bonds from forming between two men or two women, nor can it prevent families from breaking up.
Virginia courts increasingly wrestle with a branch of family law that doesn't fit neatly within established case law. Soon, vacationing gay and lesbian couples might be able to get married in California. It's clear that upon returning home to Virginia they won't enjoy any different rights as married couples. What isn't so clear is what happens if they decide to divorce.
A recent case in Roanoke County Circuit Court offers a precaution: Teresa Austin and Rebekah Austin entered into a civil union in Vermont, then lived here. After they broke up, Teresa Austin tried to have the union dissolved.
Judge Cliff Weckstein said he couldn't do that since Virginia courts are forbidden from recognizing their union. And the Vermont court can't dissolve it because neither woman lives there. This puts their union in limbo.
At least the Austins didn't have a child.
Not so for Lisa Miller and Janet Jenkins, whose child custody dispute has become the cause celebre of the anti-gay-union movement. Miller and Jenkins entered into a civil union in Vermont where they lived, had a child together and later split up. Miller moved with the child to Virginia, denounced her lesbianism, and has refused to honor a Vermont court order granting Jenkins visitation.
The case twice has gone to the Virginia Supreme Court and twice Miller has lost -- on purely procedural grounds. The state's highest court did not affirm the appeals court ruling that the federal Parental Kidnapping Prevention Act requires Virginia to uphold other states' custody orders regardless of parental gender. Chief Justice Leroy Hassell in a concurring opinion wrote that the appeals court may have erred.
Jenkins is, in a way, lucky. She had standing with the Vermont court. Not so fortunate is Christine Stadter, who lived with Jennifer Siperko in Spotsylvania County for a number of years. Like Miller and Jenkins, they had a child together.
Once their relationship soured, Siperko refused Stadter visitation rights. By the time the case was heard 16 months later, the court "found that the mother had successfully 'weaned' [the] daughter" from Stadter. Therefore, Statder couldn't prove the child would be harmed if cut off from her, the state's threshold for non-biological parents. The Court of Appeals recently concurred.
Each of these cases should serve as a sobering warning to gay and lesbian couples in Virginia. It is doubtful that state lawmakers -- who overwhelmingly supported the marriage amendment -- will work to bring clarity. And the courts, whichever way they rule, will be accused of judicial activism.
As unromantic as it might seem, homosexual couples would be well advised to seek whatever protections contractual laws might offer prior to forming unions, marrying or having children. Traditional family law in Virginia simply isn't prepared to deal with the break-up of homosexual couples.
