COURT OF APPEALS OF VIRGINIA
Present: Judge Clem ents, Senior Judges Willis and Annunziata Argued at Alexandria, Virginia

JANET MILLER-JENKINS OPINION BY v. Record No. 2654-04-4 JUDGE JERE M.H. WILLIS, JR. NOVEMBER 28, 2006 LISA MILLER-JENKINS

FROM THE CIRCUIT COUR T OF FREDERICK COUNTY John R. Prosser, Judge Joseph R. Price (L isa M. Vollendorf; Gregory R. Nevins; Rebecca Glenberg; John L. Squires; Arent Fox PLLC; Lambda Legal Defense & Education Fund, Inc. ; American Civil Libe rties Union; Equality Virginia Education Fund, on briefs), for appellant. Rena M. Lindevaldsen (Mathe w D. Staver; Scott E. Thompson; Liberty Counsel, on brief), for appellee.
Amicus Curiae : Virginia Chapter of th e National Association of Social Workers; Virginia Women Attorneys Association; Virginia Poverty Law Center, Inc.; Virg inia National Organization for Women; Virginia Organizing Proj ect (Thomas M. Wolf; Kenya N. Washington; LeClair Ryan, PC , on brief), for appellant.
Janet Miller-Jenkins (“Janet”) appeals th e October 15, 2004 “Final Order of Parentage” of the Circuit Court of Frederick C ounty (“trial court”). In that orde r, the trial court held (1) that Lisa Miller-Jenkins (“Lisa”) is “t he sole biological and natural pa rent of” IMJ, a minor, (2) that Lisa “solely has the legal rights, privileges, duties and obligations as parent hereby established for the health, safety, and welfare of” IMJ, and (3) that neither Janet “nor any other person has any claims of parentage or vi sitation rights over” IMJ. On appeal, Janet contends the trial court erre d (1) in failing to rec ognize that the federal Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1 738A, barred its exercise of-2- jurisdiction, (2) in ho lding that the Virginia Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), Code § 20-146.1 et seq. , permitted it to exer cise jurisdiction, and (3) in refusing to enforce the June 17, 2004 custody order of the Rutland County, Vermont Family Court (“Vermont court”). We hold that the trial court er red in failing to recognize that the PKPA barred its exercise of jurisdiction. Accordingly, we vacate the orde rs of the trial court a nd remand this case with instruction to grant full faith a nd credit to the custody a nd visitation orders of the Vermont court.
I. BACKGROUND Beginning in the late 1990’s, the parties liv ed together in Virginia. On December 19, 2000, they traveled to Vermont and entered into a ci vil union pursuant to the la ws of that state.
See Vt. Stat. Ann. Tit. 15, § 1201 et seq. Thereafter, while residi ng in Virginia, Lisa was artificially inseminated with sperm from an a nonymous donor. In April 2002, she gave birth to IMJ. In August 2002, the parties and IMJ moved to Vermont and established residence there. In September 2003, the parties ended th eir relationship. Lisa moved to Virginia with IMJ. Janet remained in Vermont. On November 24, 2003, Lisa filed in the Ve rmont court a “Complaint for Civil Union Dissolution.” She designated IMJ as “the biologi cal or adoptive” child of the “civil union.” She asked the Vermont court to dissolve the civil un ion, to award her legal and physical “rights and responsibilities for the minor chil d,” to award Janet “suitable pare nt/child contact (supervised),” and to “award payment of su itable child support money.” On June 17, 2004, the Vermont court entered a “Temporary Order Re: Parental Rights & Responsibilities.” In that orde r, the Vermont court awarded Lisa “temporary legal and physical responsibility for the minor child of the partie s,” and awarded Janet “on a temporary basis,-3- parent-child contact with the minor child as follows . . . .” The order then listed the specifics of that contact, and in so listing th rice used the word “visitation.” On July 1, 2004, the day Virginia’s Marria ge Affirmation Act (“MAA”), Code § 20-45.3 became law, Lisa filed in the trial court a “Pet ition to Establish Parentage and for Declaratory Relief.” She asserted that she ha d “sole custody” of IMJ, and aske d the court (1) to declare that she was “the sole parent of” IMJ, (2) to rule that she was “to be the sole parent of and to have sole parental rights over” IMJ, (3) to adjudicate any parental rights claimed by Janet “to be nugatory, void, illegal and/or unenforceable,” and (4) to award her attorney’s fees and costs. On July 19, 2004, after learning of the petition filed by Lisa in Virginia, the Vermont court entered the following order: This Vermont Court has and will continue to have jurisdiction over this case including all parent-child contact issues. This Court is unaware of any proceeding available in a state that does not recognize a civil union to re solve the issue of this case. This Court will not and cannot defer to a different State that would preclude the parties from a remedy. The Temporary Order for parent-child contact [is] to be followed. Failure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody. On July 29, 2004, Janet filed a demurrer to Lisa’s Virginia petition. On August 18, 2004, the trial court entered an orde r (1) recognizing that Janet was entering a special appearance for the purpose of contesting jurisdic tion, (2) directing the parties to file memoranda addressing the question of jurisdiction, and (3) staying all visitation between Janet and IMJ except for supervised visitation in Virginia. Following an August 24, 2004 hearing, the trial court ruled it had jurisdiction pursuant to the MAA and the U CCJEA. It memorialized this ruling in a September 9, 2004 order. 1

1 The trial court, in the September 9, 2004 order, also certified the matter for an interlocutory appeal to this C ourt pursuant to Code § 8.01-670.1. Janet noted an appeal. Record-4- Meanwhile, the Vermont court, by order entered September 2, 2004, held Lisa in contempt for refusing to comply with the ch ild visitation terms of its June 17, 2004 order. On October 15, 2004, the trial court entered the final order in this case, setting forth the holdings delineated in the firs t paragraph of this opinion. On appeal by Lisa, the Supreme Court of Vermont (“Vermont Supreme Court”) affirmed the judgment of the Vermont court, holding, inter alia , that the civil union entered into by Lisa and Janet was valid under Vermont law; that the Vermont court had jurisdiction to dissolve that civil union and to determine all its implications, including the pa rentage of and parental rights and responsibilities with respect to IMJ; and th at the Vermont court act ed properly in holding Janet to be a parent of IMJ and in assigning parental rights and res ponsibilities to her. Miller-Jenkins v. Miller-Jenkins , __ A.2d __, 2006 Vt. LEXIS 159, at ** 2-3, (Vt. Aug. 4, 2006). It held that PKPA afforded preemptive jurisdicti on to Vermont and denied full faith and credit to Virginia orders contradicting those entered by the Vermont court. Id. at __, 2006 Vt. LEXIS 159, at ** 13.
II. ANALYSIS A. The PKPA
1. Statutory History and Analysis 28 U.S.C. § 1738A, commonly referred to as the Parental Kidna pping Prevention Act, carries the following title: “Full faith and cr edit given to child cust ody determinations.” Subsection (a) of the PKPA reads: “The appropr iate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of

No. 2192-04-4. By order entered January 6, 2005, we dismissed that a ppeal, finding that we lacked jurisdiction pursuant to eith er Code § 8.01-670.1 or Code § 17.1-405.-5- this section, any custody determin ation or visitation de termination made consistently with the provisions of this section by a court of another State.” The United States Supreme Court has succinc tly summarized the thrust of the PKPA: The Parental Kidnap[p]ing Pr evention Act (PKPA or Act) imposes a duty on the States to enforce a child custody determination entered by a cour t of a sister State if the determination is consistent with th e provisions of the Act. In order for a state court’s custody decr ee to be consis tent with the provisions of the Act, the State must have jurisdiction under its own local law and one of five conditions set out in § 1738A(c)(2) must be met. Briefly put, these c onditions authori ze the state court to enter a custody decree if the ch ild’s home is or recently has been in the State, if the child has no home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the child is present in the State and has been abandoned or abused. Once a State exercises jurisdiction consistently with the provisions of the Act, no other State may exer cise concurrent jurisdiction over the custody dispute, § 1738A(g), even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State’s ensuing custody decree. Thompson v. Thompson , 484 U.S. 174, 175-77 (1988) (footnotes omitted). The PKPA had its genesis in the confusion concerning the applicability of the full faith and credit doctrine, 28 U.S.C. § 17 38, to child custody orders. See Thompson , 484 U.S. at 180. Indeed, “a parent who lost a custody battle in one State had an incentive to kidnap the child and move to another State to relitigate the issue.” Id. Yet, despite its uno fficial and common title, the PKPA is not limited to parental kidnapping cases. “[T]he principal problem Congress was seeking to remedy was the inapplicability of full faith a nd credit requirements to custody determinations. . . . The spons ors and supporters of the Act continually indicated that the pur pose of the PKPA was to provide for nationwide enforcement of custody orders made in accordance with the terms of the UCCJA 2

. . . . Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations . . . .”

2 The Uniform Child Custody Jurisdiction Act, since superceded by the UCCJEA.-6- Scott v. Rutherfoord , 30 Va. App. 176, 187, 516 S.E.2d 225, 231 (1999) (quoting Thompson , 484 U.S. at 181, 183) (emphasis added). See also Wilson v. Gouse , 441 S.E.2d 57, 60 (Ga. 1994) (“the PKPA was intended not only to apply where a child was abducted by a parent and removed to another state but to remedy what was wi dely considered to be the inapplicability of the full faith and credit statute to child custody orders” (footnote omitted)). Moreover, it is well settled that the PKPA preempts any conflicting state law. See Meade v. Meade , 812 F.2d 1473, 1476 (4th Cir. 1987) (“The PK PA quite simply preempts conflicting state court methods for ascertaining custody juri sdiction.”). See also Murphy v. Woerner , 748 P.2d 749, 750 (Alaska 1988); Delk v. Gonzalez , 658 N.E.2d 681, 684 (Mass. 1995); In re Clausen , 502 N.W.2d 649, 673-74 (Mich. 1993); In re Relationship of Henry , 951 P.2d 135, 138 (Or. 1997); State ex rel. Conforti v. Wilson , 506 S.E.2d 58, 62 (W. Va. 1998); Michalik v. Michalik , 494 N.W.2d 391, 394 (Wis. 1993). Pursuant to Vt. Stat. Ann. tit. 15, § 1206, 3 Lisa filed a “Complaint for Civil Union Dissolution” with the Vermont court on November 24, 2003. By doing so, she placed before the Vermont court the issues of the parties’ le gal and physical “rights and responsibilities” concerning IMJ and “suitable parent/child contac t.” In Vermont, the te rm “parental rights and responsibilities” means “the rights and respons ibilities related to a child’s physical living arrangements, parent child contact, education, me dical and dental care, religion, travel and any other matter involving a child’s welfare and upbringing.” Vt. Stat. Ann. tit. 15, § 664(1). And the term “parent child contact ” means “the right of a pare nt who does not have physical responsibility to have visita tion with the child.” Vt. Stat. Ann. tit. 15, § 664(2).

3 “The family court shall have jurisdiction over all proceedings rela ting to the dissolution of civil unions.”-7- In reviewing the applicability of the PKPA to the trial court’s action, we are guided by the wording of the statute. “A principal rule of statutory interpretation is that courts will give statutory language its plain mean ing.” Davenport v. Little-Bowser , 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005). At its threshold, the PKPA requires that a court making a child custody or visitation determination ha ve “jurisdiction under the law of such State.” 28 U.S.C. § 1738A(c)(1). The Vermont Supreme Court held that the Vermont court had jurisdiction under the laws of Vermont over the case in itiated by Lisa’s complaint. See Vt. Stat. Ann. tit. 15, § 1206. We are bound by that holding. See 28 U.S.C.§ 1738A(a) and (g). Furthermore, Code § 28 U.S.C. 1738A(c)(2 )(A)(ii) sanctions the Vermont court’s exercise of jurisdiction. That subsection applies where a state “h ad been the child’s home State within six months before the date of the commen cement of the proceeding and the child is absent from such State because of his removal or reten tion by a contestant or for other reasons, and a contestant continues to li ve in such State.” Id. The parties lived toge ther in Vermont until September 2003, when Lisa and IMJ moved to Virg inia. Janet continued to live in Vermont. Lisa commenced the Vermont proceeding to di ssolve the civil union in November 2003, two months after Vermont ceased to be IMJ’s “home st ate, due to her having been removed from that state” by Lisa. Because the Vermont court acquired jurisdicti on over the issues of custody and visitation, subsections (g) and (h) of the PKPA governed the trial cour t’s ability to entertain Lisa’s petition. Those subsections read: A court of a State 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 where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.-8- A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination. 28 U.S.C. § 1738A(g) and (h). The proceeding in the Vermont court was pending when Lisa filed her petition in the trial court. The Vermont court was then exerci sing its jurisdiction under Vermont law and consistently with the provisions of the PKPA. Thus, subsection (g ) applied. The Vermont court, by virtue of its June 17, 2004 and July 19, 2004 orde rs, continued to exerci se jurisdiction, giving application to subsection (h). Therefore, under a “plain meaning” statut ory analysis, the trial court lacked authority to exerci se jurisdiction based upon Lisa’s custody and visitation action in Virginia or to modify the custody and vi sitation orders of the Vermont court.
2. Lisa’s Position Lisa posits three arguments why the PKPA did not preclude the trial court from exercising jurisdiction over her petition. a. Application of Vermont Law First, Lisa argues that “to the extent the Vermont order constitutes a visitation determination, the Virginia court properly exer cised jurisdiction because the Vermont order was not properly made.” Speci fically, Lisa contends the Vermont court could not grant “parent child contact” to Janet because it did not first dete rmine that Janet was a parent. The Vermont Supreme Court rejected this argument. Miller-Jenkins , __ A.2d at __, 2006 Vt. LEXIS 159, at ** 55. Furthermore, Lisa makes this contenti on despite the fact that she alleged in her “Complaint for Civil Union Dissolution” that IMJ was “the biological or a doptive child[] of said civil union,” and despite the fact that the Vermont court in it s June 17, 2004 order specifically found that IMJ was “the minor child of the parties.”-9- Lisa cites no authority, and we know of none, that permits us to rule that the supreme court of another state incorrectly interpreted its own law. The contrary is well established: “This Court has uniformly professed its disposition, in cases depending on the laws of a particular State, to adopt the construction which the Cour t of the State have gi ven to those laws.” Elmendorf v. Taylor , 23 U.S. (10 Wheat.) 152, 159 (1825). b. Custody or Visitation Determination Second, Lisa argues: “Even if the Verm ont court properly made an initial custody determination within the meaning of the PKPA, th e Virginia court properly exercised jurisdiction over the parentage action filed in Virginia.” Spec ifically, Lisa contends the Virginia parentage action is not a custody or visitation determination pe r the PKPA. Yet, Lisa’s petition to the trial court prays that she be adjudicated as having “s ole parental rights” ove r IMJ and that Janet’s claim to “parental rights” be adjudged “nuga tory, void, illegal and/or unenforceable.” Lisa’s complaint in the Vermont court assert ed that IMJ was “the biological or adoptive” child of the civil union. She aske d that court to award Janet “su itable parent/child contact” and to “award payment of suitable ch ild support money.” She thus submitted the determination of IMJ’s parentage to the jurisdiction of the Vermont court. Its resolution of that issue has been affirmed by the Vermont Supreme Court and is final. Whatever semantical machinations are invo lved, any common understanding of the term “parental rights” includes the right to custody, see Szemler v. Clements , 214 Va. 639, 643, 202 S.E.2d 880, 884 (1974) (“Parental rights of cu stody are founded upon the strong presumption that the best interests of the child will be served by placing it in the custody of its natural parents.”), and visitation, see Peter N. Swisher, Lawrence D. Diehl & James R. Cottrell, Virginia Practice Series: Family Law: Theory, Practice, and Forms § 15.8 (2004 ed.) (“The right of a non-custodial parent to the compa ny and society of his or her child is well established. Barring- 10 - gross unfitness which jeopardizes the well bein g of the child, visitation is a presumed entitlement.”). See also L.A.M. v. State , 547 P.2d 827 (Alaska 1976). 4 We therefore reject the contention that Lisa’s “parentage action” is not a custody or visitation determination embraced by the PKPA. c. DOMA and the MAA Third, Lisa argues: “Even if the Vermont court properly made an initial custody determination within the meaning of the PKPA, a nd the Virginia order is somehow construed as

4 While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as “parental rights” prot ected to varying degrees by the Constitution: (1) Physical possession of the child which, in the case of a custodial parent includes the day-to-day care and companionship of th e child. In the case of a non-custodial parent, possession is tantamount to the right to visitation. (2) The right to discipline the child, which includes the right to inculcate in th e child the parent’s moral and ethical standards. (3) The right to control a nd manage a minor child’s earnings. (4) The right to control a nd manage a minor child’s property. (5) The right to be suppo rted by an adult child. (6) The right to have the child bear the parent’s name. (7) The right to prevent an adoption of the child without the parents’ consent. L.A.M. , 547 P.2d at 832 n.13.- 11 - a visitation or custody determination, the Virginia court properly exerci sed jurisdiction over the matter by virtue of the federal Defense of Marri age Act and the [Virgini a] Marriage Affirmation
Act.” DOMA reads: No state, territory, or possession of the United States, or Indian tribe, shall be required to give e ffect to any public act, record, or judicial proceeding of any other St ate, territory, possession, or tribe respecting a relationship between pe rsons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or right or claim arising from such relationship. 28 U.S.C. § 1738C. Lisa argues that DOMA, enacted in 1996, e ffectively trumps the PKPA, enacted in 1980, thus enabling the trial court to exercise jurisdiction over Lisa’s petition. We disagree. Lisa cites no authority hold ing that either the plain word ing of DOMA or its legislative history was intended to affect or partially repeal the PKPA. Th erefore, any Congressional intent to repeal must be by implication. However, “[r]epeal by implication is not favored and the firmly established principle of la w is that where two statutes are in apparent conflict, it is the duty of the court, if it be reas onably possible, to give to them such a construction as will give force and effect to each.” Scott v. Lichford , 164 Va. 419, 422, 180 S.E. 393, 394 (1935). We do not read the two statutes to conflict. They can be reconc iled. In analyzing the statutes, we are mindful that “[t] he primary objective of statutory construction is to ascertain and give effect to legislative intent. Turner v. Commonwealth , 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). The plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction. Id. ” Commonwealth v. Zamani , 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). As we have noted, “‘ Congress’ chief aim in enacting the PKPA- 12 - was to extend the requirements of the Full Fait h and Credit Clause to custody determinations.’”
Scott , 30 Va. App. at 187, 516 S.E.2d at 231 (quoting Thompson , 484 U.S. at 183). DOMA has two primary purposes. The first is to defend the institution of traditional heterosexual marriage. The second is to protect the right of the States to formulat e their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexua l couples to acquire marriage licenses. H.R. Rep. No. 104-664, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. See also id. at 18, reprinted in 1996 U.S.C.C.A.N. at 2922 (“It is surely a legitimate purpose of government to take steps to protect the right of the people, acting through their state le gislatures, to retain democratic control over the manner in which the St ates will define the institution of marriage. [DOMA] advances this most im portant government interest.”). Nothing in the wording or the legislative hi story of DOMA indicates that it was designed to affect the PKPA and related custody and visitation determinations. Simply put, DOMA allows a state to deny recognition to same-sex marri age entered into in anot her state. This case does not place before us the ques tion whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted th e Vermont court jurisdiction to render those decisions. By fili ng her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed hersel f and the child before that court and laid before it the assertions and prayers that formed the bases of its orders . By operation of the PK PA, her choice of forum precluded the courts of this Commonwealth fr om entertaining countervailing assertions and
prayers.- 13 - Lisa argues that the MAA forbade the trial court to extend full faith and credit to the orders of the Vermont court. The MAA reads: A civil union, partners hip contract or othe r arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohi bited. Any such civil union, partnership contract or other a rrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any cont ractual rights created thereby shall be void and unenforceable. Code § 20-45.3. We need not, and do not, decide whether the MA A applies to this case. If it does, it is preempted by the PKPA. See , e.g. , Meade , 812 F.2d at 1476 (PKPA pr eempts conflicting state law). B. The UCCJEA Janet also contends the trial court erre d in holding that the UCCJEA permitted it to exercise jurisdiction in this case. Having determined that the PKPA is the controlling law in this matter and that the PKPA preempts conflicting st ate law, we need not address that issue.
III. CONCLUSION We hold that the trial court erred in fail ing to recognize that the PKPA prevented its exercise of jurisdiction and requi red it to give full faith and credit to the custody and visitation orders of the Vermont court. By so holding, we do not address whether Virginia law recognizes or endorses same-sex unions entered into in anot her state or jurisdicti on. We do not comment on the constitutionality, viability or breadth of—the UCCJEA and the MAA. We do not consider the merits of the rulings of th e Vermont court. Those questions are not before us. The issue before us is the narrow one of jurisdiction. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction. The PKPA forbids her prosecution of this action in the courts of this Commonwealth. Accordingly,- 14 - we vacate the orders of the trial court and remand th is matter to the trial co urt with instruction to extend full faith and credit to the custody and visitation orders of the Vermont court. Vacated and remanded.