Kenneth Miller, of Stuarts Draft, Va., is appealing his 2012 conviction in Vermont federal court for aiding in international parental kidnapping. His 27-month prison sentence is delayed while he appeals.
Miller's attorney David Williams argued before a federal appeals court that no element of the pastor's crime took place in Vermont.
He said Lisa Miller, who is not related to the pastor, fled from Virginia and passed through West Virginia, Maryland and Pennsylvania before crossing the border in New York in September 2009. He said all of those states would have been more proper venues for a trial.
Assistant U.S. Attorney Eugenia Cowley argued the crime took place in Canada when Miller and her daughter Isabella crossed the border, and its impact was in Vermont, where her former same-sex partner lives.
She also said that if Miller wins his appeal, the case would simply be refiled in one of those other states.
"By winning, you would not be winning very much, do you agree?" Judge Jose Cabranes asked Williams.
Williams said his client would win a "fair jury trial in a proper venue."
Lisa Miller and Janet Jenkins, of Fair Haven, Vt. were joined in a Vermont civil union in 2000, and Isabella was born to Lisa in 2002.
The couple split in 2003 and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins. Lisa Miller sought full custody after moving to Virginia and renouncing homosexuality. She then fled the country with Isabella, and a Vermont judge gave custody of the girl to Jenkins.
At Kenneth Miller's trial, prosecutors showed how he arranged for Lisa Miller and Isabella to travel to Central America, including having a relative of his buy the plane tickets, and for the two to be met in Nicaragua by another Mennonite pastor.
Lisa Miller and the girl are still believed to be in Nicaragua.
Jenkins has filed a civil lawsuit against Kenneth Miller and a number of others allegedly involved in the case. That case is pending.
Dozens of people packed the hearing room Monday, including several groups from Mennonite communities throughout the Northeast. Miller held an impromptu receiving line in the hallway, thanking each person for their support and prayers.
He said he is grateful to the U.S. judicial system for hearing his appeal and is at peace with his actions and whatever decision the court eventually makes, because he believes it is all part of God's plan.
"Whether I am successful in my appeal or not, what I am saying is that it is all good," Miller told The Associated Press. "That is my faith."
The New York City-based 2nd U.S. Circuit Court of Appeals heard the case and four others Monday at the University of Connecticut Law School, under an occasional practice to hold court across its territory of Connecticut, New York and Vermont.