Best Interests and Parental Presumptions: Bringing Same-Sex Custody Agreements Beyond Preclusion By the Federal Defense of Marriage Act

Whether we believe same-sex couples should be allowed to get married, enter into civil unions, or raise children, the reality is that they do so.1 INTRODUCTION According to United States Census data for the year 2000, the number of samesex families is on a dramatic rise, with thirty-four percent of lesbian couples and twenty-two percent of gay male couples raising children under eighteen.2 As the number of such non-traditional families increases, so does the need for adequate protection. What some classify as anti-gay legislation is eroding the ability of samesex parents to safeguard their basic rights, specifically with regard to custody and visitation.3 Upon the dissolution of a same-sex relationship or legally recognized union, one parent's relationship to the is usually shifted to the status of legal stranger.4 Even if certain individual rights are granted, they often fail to amount to complete recognition as a legal parent,5 short-changing homosexual parents and their children in ways traditional families need not even consider. Courts routinely rely on biology to limit the people claiming to be parents, but parental rights do not spring full-blown from the biological connection . . . [t]hey require relationships more enduring.6 But traditional families account for a mere one-quarter of the total number of households in the United States, and many of the remaining non-traditional families would be willing to provide stable and healthy homes for children if they were afforded adequate protection to ensure that stability.7 If fundamental constitutional rights continue to be extended to traditional nuclear families, it is widely suggested that similar rights be afforded to other non-traditional parents as well.8 Beyond biology, the determination of a custody or visitation agreement is based on a interest of the child standard.9 Some argue, however, that a habitual commitment and preference of different-sex couple parenting10 exists, which interferes with the application of the best interest standard to same-sex parents.11 Even if samesex parents are granted custody rights in an agreement, the difficulty in seeking protection for these parenting rights is further compounded if one partner moves to a different state after dissolution of the relationship. Ordinarily, the Full Faith and Credit Clause,12 enhanced by the Parental Kidnapping Prevention Act (PKPA),13 protects a parent when his or her ex-spouse changes domiciles.14 But with the enactment of the Federal Defense of Marriage Act (DOMA)15 and subsequent state statutes, same-sex rights are in a more tenuous position than ever.16 The enactment of the Federal DOMA, which allows states to decline effect to same-sex marriage related rights,17 has left states to interpret whether the Act was intended to modify the PKPA's extension of full faith and credit to custody agreements granted to same-sex couples in other states. 18 The Virginia and Vermont courts recently addressed this issue as they were pitted against one another in the series of cases surrounding Miller-Jenkins v. Miller-Jenkins.19 The Virginia Court of Appeals eventually held that the PKPA prevented Virginia's exercise of over a Vermont custody agreement between two same-sex partners after the dissolution of their Vermont civil union.20 The Virginia ruling was a powerful step towards protecting the children of separated same-sex couples because it provided full faith and credit to the previouslyentered Vermont agreement.21 However, the court made it clear that the ruling was a narrow one of jurisdiction only,22 leaving the conflicts between full faith and credit, DOMA, and the PKPA open to further - potentially back-pedalling - interpretation. The United States Supreme Court denied a petition for writ of certiorari in January of 2008, leaving this issue open for further discussion on a national level. …

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