Analysis: Miller-Jenkins v. Miller-Jenkins II

Facts: Following a dissolved lesbian civil union, Vermont awarded permanent custody to Lisa and visitation to Janet. Lisa moved to Virginia with the parties' child. In the first Virginia appeal, the Court of Appeals affirmed Virginia's recognition of the Vermont custody pursuant to the Parental Kidnapping Prevention Act, 28 U.S.C. §1738 (A), and set aside a Circuit Court order that had declared custody jurisdiction in Virginia and ruled Lisa was the sole parent. In the second VA appeal, the Virginia J&DR Court registered the Vermont custody order, Circuit Court struck the registration, and the Court of Appeals reinstated the registration. Janet appealed to the Virginia Supreme Court.

Issue: Was the first Virginia Court of Appeals decision the "law of the case"?

Ruling: Yes. With the same parties and the same facts, the decision reached in the first appeal remains the law.

Comment: This Virginia Supreme Court decision is straightforward: You cannot appeal the same thing twice. The principle has nothing to do with the parties' sexual orientation, gay marriage, or a conflict of law between Virginia and Vermont. Furthermore, this case does not apply the Marriage Affirmation Act, VA Code § 20-45.3; or the Defense of Marriage Act, 28 U.S.C. § 1738 (C).