Interstate Child Custody / Visitation Dispute by Lesbian “Second Mother”

A child custody case that is potentially far-reaching is making its way through both the Virginia and Vermont courts – despite the fact that all of the states in this nation started passing laws back in the 1960s with the specific intention of stopping parallel cases in different states from proceeding to (potentially conflicting) final judgments about custody of the same child.

The facts extracted from the articles cited below:
The dispute is between two women who were engaged in a lesbian relationship which had been formalized in a Vermont civil union before the child in the case was born to one of them by means of artificial insemination. The couple lived with the baby in Virginia for a few months, until they relocated to Vermont. After living in Vermont for about a year, the adults’ relationship broke up and they filed suit in Vermont to dissolve their civil union and to determine parental rights over the child. The Vermont court granted primary custody of the child to the birth mother with visitation to her former partner, on a temporary basis, pending further hearing(s).

After that, the birth mother relocated back to Virginia with the child. Once there, the birth mother refused her former partner the visitation ordered by the Vermont court and filed a new suit to determine parental rights over the child – this time in Virginia. The Virginia court apparently disregarded the Vermont court case and proceeded to grant the birth mother sole custody of the child without awarding any visitation to her former partner.

The case is now on appeal in both Virginia and Vermont.

Needless to say, many people have strong opinions and feelings about whether the birth mother’s former partner should or should not ultimately win permanent visitation rights. Those opinions and feelings, however, leapfrog right past the only question that I believe, strictly speaking legally, is properly before any court of law now: which state should exercise jurisdiction in this child custody action?

Admittedly, this is not intuitive, but custody / visitation cases between parents living in different states have two distinct stages. The first stage is a determination solely as to which state has jurisdiction, jurisdiction to make decisions – in the second stage – on the merits. Consideration of who should / will ultimately win custody / visitation on the merits normally should not play any part in the determination of which state has jurisdiction.

That question is simply reserved for stage two, on another day – and possibly in another state.

So, in a somewhat oversimplified, bottom-line nutshell, under the laws of the various states, the merits of who will ultimately win the custody / visitation dispute should be tackled only by one state: the one state that will have jurisdiction. Everything else is extraneous – now.

But that doesn’t seem to be reflected in the media coverage. See articles below:

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