Enforcing same-sex custody orders
DLaycock at law.utexas.edu
Fri Dec 10 15:22:55 PST 2004
There is no public policy exception to judgments. Fauntleroy v.
Lum and subsequent cases. There is no equity exception to judgments.
Baker v. GM.
There is a real problem with full faith and credit to custody
orders because they remain modifiable even in the home state. That
opens a loophole that sister-state courts take advantage of.
There is also DOMA and the possibility that its
constitutionality might be upheld.
Finally, the Vermont order might be unconstitutional under the
case from Washington state that struck down grandparent visitation
rights. But that issue could be raised only on direct appeal, not
collaterally in Virginia.
In Virginia, there is no public policy exception to judgments.
Fauntleroy v. Lum and subsequent cases. There is no equity exception to
judgments, Baker v. GM, although there is fuzziness resulting from the
fact that custody orders are modifiable even in the home state, and
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 10, 2004 5:12 PM
To: conlawprof at lists.ucla.edu
Subject: Enforcing same-sex custody orders
Some defenders of same-sex marriage (myself included) have argued that
under the current system, especially given DOMA, each state may simply
decide for itself whether to recognize same-sex marriages or civil
unions, and that this won't have effects on other states. This is an
argument against adopting a Federal Marriage Amendment.
David Frum at NRO, http://www.nationalreview.com/frum/diary120904.asp,
points to this case: Two Vermont women, Lisa and Janet, entered a civil
union. One became pregnant. The relationship ended. The mother and child
moved out of state to Virginia - a state that does not recognize civil
unions. The non-custodial women sued for visitation rights in Virginia
and lost. So she sued in Vermont and on November 20 won a custody order
from a Vermont court. If the birth mother ignores the order, Vermont
will hold her in contempt - and will then demand that Virginia enforce
the contempt ruling."
I assume that Virginia may refuse to enforce the order as being against
Virginia public policy. Is that so? I'd love to hear people's thoughts
on this. Many thanks,
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