Wednesday, March 3, 2010

Virginia appeals court agains sides with nonbio mom and against Liberty Counsel

At this point the Miller-Jenkins custody dispute is the most heavily publicized and longest running case over custody of a child born of donor insemination to a lesbian couple. I summarized much of the history in a previous post.

Last week the mainstream press covered the Vermont court's issuance of an arrest warrant for Lisa Miller, who has disappeared rather than adhere to any of the court orders granting Janet Jenkins first, visitation, and then, custody, of their daughter, Isabella. But there was another important ruling in the case last week, this time from the Virginia Court of Appeals. That court rebuffed Lisa's most recent attempt, orchestrated by her lawyers at the right-wing Liberty Counsel, to argue that Virginia should not enforce the orders of the Vermont court.

The legal principle in this latest appellate court ruling has nothing to do with lesbian mothers and everything to do with garden variety civil procedure doctrine. For obvious efficiency reasons, litigants are not able to re-raise issues they have previously litigated in the same case. It's called the "law of the case" doctrine.

In Miller's latest effort to thwart the court orders, she argued that even though the Virginia Supreme Court in 2008 ruled that Virginia must register the orders of the Vermont court, that did not mean that Virginia had to enforce those orders. Last week's ruling from the Virginia Court of Appeals affirmed a Virginia trial judge's ruling that the Vermont orders must be enforced.

The court noted that from the beginning of her litigation in Virginia, Lisa has asked that the Vermont orders in the case not be enforced. The Virginia Supreme Court has twice heard appeals in this case, and the rulings it has made govern any future litigation between the parties. In other words, there's nothing new to argue; the Virginia courts have heard it all. Lisa's attempt to parse registration and enforcement is not a new issue, but a re-hashing of the exact same issues she has been arguing for years. She has lost before and she has just lost again.

The most important question at the moment is where Lisa is hiding with Isabella. But I've got another question, triggered by some basic principles of civil litigation that I teach my first year law students. When will a Virginia court censure, and maybe even fine, Liberty Counsel for making frivilous legal arguments?

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