The custody battle between Janet (left) and Lisa Miller-Jenkins
over their daughter Isabella could have a major impact on gay
couples nationwide. A Vermont judge ruled this week that both partners in a civil
union have equal parental rights.
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LOU CHIBBARO JR.
Friday, November 26, 2004
A Vermont judge ruled on Nov. 17 that both partners in same-sex civil unions performed
in that state become automatic legal parents of a child, regardless of which partner
gives birth to or adopts the child.
The ruling, which legal observers called a landmark decision, was issued in
response to a bitter child custody dispute between two lesbians from Virginia
who entered into a Vermont civil union in 2000.
The two women, Lisa Miller-Jenkins, 35, who currently lives outside Winchester,
Va., and Janet Miller-Jenkins, 39, who lives in Fair Haven, Vt., separated in
September 2003. The separation came two years after Lisa Miller-Jenkins gave
birth to the couple’s daughter through artificial insemination.
The dispute has led to a showdown between courts in Vermont and Virginia, where
Vermont’s civil union law is being pitted against Virginia’s anti-gay
Marriage Affirmation Act, which bans legal recognition of all forms of same-sex
relationships.
Lisa Miller-Jenkins has invoked the Marriage Affirmation Act, which took effect
July 1, in an attempt to bar her former partner from visiting the child and
from playing any role in the child’s upbringing.
Judge William D. Cohen of the Rutland County, Vt., Family Court, earlier this
year awarded Lisa Miller-Jenkins primary custody of the child while granting
Janet Miller-Jenkins visitation rights. At the time, relations between the two
remained cordial, and Lisa Miller-Jenkins did not raise objections to her former
partner’s interest in visiting the child, according to Joseph Price, an
attorney representing Janet Miller-Jenkins.
The couple and the child, 2-year-old Isabella, had been living together in Vermont.
Price said it was Lisa Miller-Jenkins’ idea that they move from Virginia
to Vermont in July 2002, when both agreed that Vermont provided a more favorable
environment for a lesbian couple. When the couple split up in September 2003,
Lisa Miller-Jenkins and Isabella moved to Hamilton, Va., near Winchester, under
a separation agreement worked out jointly and amicably through a proceeding
with Judge Cohen’s court in Rutland.
The cordial relations between the two women ended suddenly on July 1 when Lisa
Miller-Jenkins declared she was no longer a lesbian and filed court papers in
Virginia seeking sole parental rights to her daughter under the state’s
Marriage Affirmation Act. The act took effect that same day. Lisa Miller-Jenkins
also sought help from an “ex-gay” organization in Vermont and from
anti-gay rights groups in Virginia in her quest to obtain sole custody rights
to her daughter. In response to a motion filed by her attorney, a judge in Virginia
ruled that Lisa Miller-Jenkins is the child’s “sole parent.”
Judge John R. Prosser of the Frederick County, Va., Circuit Court declared
that his court, rather than the Vermont family court, had jurisdiction over
the case under the Marriage Affirmation Act.
The Republican-controlled Virginia Legislature passed the Marriage Affirmation
Act last year by a lopsided margin. At the time, Democratic Gov. Mark Warner
attempted to amend the bill to exempt private contracts from the law while retaining
its ban on same-sex marriage or civil unions. But the assembly rejected those
changes by a veto-proof margin.
In his latest ruling on Nov. 17, Judge Cohen in Vermont rejected Prosser’s
ruling, saying his court has jurisdiction over the case.
“Parties to a civil union who use artificial insemination to conceive
a child can be treated no differently than a husband and wife, who, unable to
conceive a child biologically, choose to conceive a child by inseminating the
wife with the sperm of an anonymous donor,” Cohen wrote in his ruling.
Cohen added that the argument by an attorney for Lisa Miller-Jenkins, that
Janet Miller-Jenkins has no legal parental rights unless she adopts the child,
“is without merit.”
Cohen agreed to arguments by attorneys representing Janet Miller-Jenkins that
both the Vermont civil union law and a federal statute called the Parental Kidnapping
Prevention Act of 1980 gave the Vermont court clear jurisdiction over the case.
Cohen based this opinion on the fact that both women initially filed jointly
for a separation in their civil union in the Vermont court system, a development
that places the case in Vermont rather than in a state in which one of the two
partners moves.
Attorney Joseph Price represents
Janet Miller-Jenkins in her custody dispute that has become a landmark case
being watched nationwide. (Photo by Bryan Anderton) |
“This is clearly the right interpretation of the law,” said Price,
Janet Miller-Jenkins’ attorney.
“My client is being treated like any other parent in this situation,”
he said.
But Price, who chairs the board of the statewide gay rights group Equality Virginia,
acknowledged that Judge Cohen currently has no powers to force Lisa Miller-Jenkins
to comply with his latest ruling and his earlier order that Janet Miller-Jenkins
be allowed to visit Isabella in Virginia. In September, upon learning that Lisa
repeatedly refused to allow Janet to visit the child, Cohen declared Lisa in
contempt of court.
The contempt order could lead to a fine, jail time, or a reversal of the custody
agreement for Lisa if the Virginia courts eventually concede jurisdiction to
Vermont or if a federal court decides that Vermont has jurisdiction in the case.
Attorneys representing Lisa Miller-Jenkins did not return phone calls by press
time.
Price said Janet Miller-Jenkins is appealing the ruling of Judge Prosser of
the Frederick Circuit Court to the Virginia Court of Appeals. Price said he
is hopeful that the appeals court will reverse Prosser’s ruling on grounds
that Prosser failed to correctly interpret the federal “parental kidnapping”
statute, which places jurisdiction in custody cases with the court that first
hears such cases.
Any legally correct ruling would have to concede jurisdiction to Vermont, Price
said.
He said both sides would most likely appeal an unfavorable ruling to the Virginia
State Supreme Court. An unfavorable ruling there might prompt either side to
appeal to the U.S. Supreme Court, according to Price.
But he said the case, in the unlikely event that the U.S. Supreme Court agrees
to take it, would center on a “parochial” issue of state jurisdiction
over a child custody matter. It would not address the issue of civil unions
or same-sex marriage, Price said.
Last summer, the Center for American Cultural Renewal, an organization calling
for the repeal of Vermont’s civil union law, announced it was funding
Lisa Miller-Jenkins’ legal efforts to obtain sole parental rights of her
child. In a fund-raising letter, the group condemned Janet Miller-Jenkins for
“exploiting” the child to “further the extreme ideology of
the radical homosexual agenda.” The letter included a photo of Janet Miller-Jenkins
and Isabella.
Lou Chibbaro Jr. can be reached at lchibbaro@washblade.com.
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