Nov 26, 2004  |  By: LOU CHIBBARO JR.  | COMMENTS     

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.

New Va. law sparks dispute
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.

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