Aug 20, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

The story rings familiar with couples in the throes of the family court system: Two people fall in love, get married and have a child together, only to separate years later with a judge left to decide the child’s custodial future.

But the account of Janet Miller-Jenkins and her former partner, Lisa Miller-Jenkins, has a contemporary — and unforeseen — legal twist, brought about by the national controversy over same-sex marriage.

In 2000, the Northern Virginia natives exchanged vows in a Vermont civil union, gave birth and moved to the progressive New England state for its greater range of gay legal protections.

Four years later, the Miller-Jenkins family is entangled in a bitter custody battle over Isabella, their 2-year-old daughter, in a case that could test the feasibility of interstate marriage laws, and particularly Virginia’s newly enacted — and extremely stringent — civil union ban.

On Aug. 24, Frederick County Court Judge John Prosser will decide whether a Virginia court has jurisdiction to grant full custody of Isabella to Lisa, her biological mother who has moved back to Virginia, over a Vermont decree granting co-parental status and visitation rights to Janet.

Lawyers on both sides said that while the Vermont court will most likely retain its authority, Virginia could enforce its civil union ban, the Marriage Affirmation Act, which does not permit recognition of civil unions and nullifies other legal agreements that mirror marriage.

‘Ex-lesbian’ uses anti-gay law
Last week, Prosser delayed the decision on jurisdiction and ordered both sides to file further arguments.

Janet Miller-Jenkins’ attorney, Joseph R. Price, submitted a motion invoking Virginia’s Uniform Child Custody Enforcement & Jurisdiction Act, which prohibits Virginia from interfering with any custody proceeding taking place in another state. Price, who has a long history of gay rights advocacy, saidh he believed Prosser would rule in his client’s favor.

“We are asking that this case be dismissed and the original custody order upheld. The law is crystal clear on this matter: Virginia courts have no authority to issue a custody order when another state court has already done so,” Price said.

“Virginia doesn’t want parents who get a custody order they don’t like in one state to run here, live for six months and try to get another custody order. The state would become the Las Vegas of gay custody battles.”

Price also asked the court to disregard a petition Lisa Miller-Jenkins filed on July 1 — the day the Marriage Affirmation Act took effect — requesting sole custody of Isabella and claiming that “no rights arising or claiming to arise out of the civil union can be recognized or have any force” in Virginia.

Phil Griffin, Lisa’s attorney, told the Associated Press that since Virginia doesn’t recognize Vermont civil unions under its new law, the Vermont court order granting Janet’s visitation rights is invalid.

“We’re cautiously optimistic,” Griffin said. “We believe jurisdiction is in Virginia because the child was born here and her mother lives here. … The court has to declare [Lisa] the mom.”

Lisa has refused all comment through her lawyers.

But the real test, Janet’s attorneys say, will come after a judge in a Vermont family court decides on whether to grant Janet’s petition there for full custody of Isabella.

Her right to custody hinges on that Vermont decree, not on her civil union, since the U.S. Constitution’s “full faith and credit” requirement is much stronger for court decrees than for marriages, according to John Harrison, law professor at the University of Virginia.

“Most states operate under the standard principle that a marriage deemed valid in its original jurisdiction is valid everywhere. But an exception arises if a strong public policy to the contrary exists in the jurisdiction being asked to recognize the marriage, and therefore the parental rights,” Harrison said.

“The Virginia statute appears to make it the strong public policy of Virginia not to recognize same-sex civil unions from other states. Under standard conflict of laws principles, Virginia can do that.”

A Virginia court is more likely to feel bound by the Parental Kidnapping Prevention Act, which legislators designed to keep a non-custodial parent from taking children to another state and obtaining a more favorable custody decree, Harrison said.

“That’s not inconsistent with the Virginia statute about same-sex unions, because custody decrees are distinct from marriage and recognizing one doesn’t mean recognizing the other,” she said.

Longing for a family
While she realizes the significance of her case, Janet Miller-Jenkins, 39, said she never wanted to become a legal crusader. When she and ...