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BRYAN ANDERTON
Friday, August 27, 2004
WINCHESTER, Va. — A Virginia judge ruled this week that the state will
keep jurisdiction in a custody case involving two separated lesbian mothers who
were joined in a Vermont civil union, despite a Vermont ruling that already grants
both women co-parenting rights.
In a case that was being watched closely by both sides of the gay marriage
debate, Frederick County Circuit Court Judge John Prosser on Tuesday became
the first judge in the state to use Virginia’s recently enacted Marriage
Affirmation Act to void the rights obtained by a Vermont civil union.
“Public policy in Virginia is that civil unions are void in all respects,” Prosser
said in his ruling. “One could make the argument that nothing has taken
place in Vermont that would preclude this court from determining jurisdiction.”
The case involves two women — Janet Miller-Jenkins and her former partner,
Lisa Miller-Jenkins — who were united under a Vermont civil union in
2000 while living in Virginia. In 2002, Lisa gave birth to their daughter Isabella,
now age 2, after being artificially inseminated, and the couple moved to Vermont
to access the greater rights afforded to gay couples in that state.
Last year, the couple split and Lisa moved back to Virginia and filed to dissolve
the civil union in a Vermont court. In her petition to dissolve the union,
Lisa listed Isabella as a child of the couple and requested “suitable
parent-child contact” for Janet. A Vermont judge granted co-parenting
rights to both women, with visitation for Janet.
On July 1, the day the Marriage Affirmation Act took effect, Lisa filed a petition
in Virginia to request sole custody of Isabella, saying the new law made her
civil union null and void.
She has enlisted the aid of two groups that oppose gay rights, the Liberty
Counsel and Vermont Renewal, a Vermont-based “ex-gay” group. Lisa
has posed for fund-raising newsletters issued by Vermont Renewal in which she
is referred to as a “former lesbian.”
Janet Miller-Jenkins and her attorneys were hoping the judge would concede
jurisdiction of the case to Vermont, where Janet has filed a request for full
custody of Isabella. Arguments were heard in that case last week, and a ruling
is expected in the coming weeks.
Janet Miller-Jenkins could not be reached at her home in Vermont by Blade
press time, but her attorney, Joseph Price, said she was upset by the ruling.
Price is the board chair of Equality Virginia.
“Janet is like any parent, she’s completely distraught that she’s
been away from Isabella for quite a bit of time,” said Price, adding
that the mother has been denied access to her daughter by her former partner
since May.
Dyana Mason, executive director of the gay rights group Equality Virginia,
said she was “disappointed” by the judge’s decision.
“The judge today got this wrong,” Mason said. “Both state
and federal law is pretty clear that they should have honored the Vermont decision
and the Vermont custody order in this particular case.”
Mason said Prosser’s ruling could set a dangerous precedent.
“This is the first time of what I’m sure will be many times that
the Marriage Affirmation Act is going to be used against gay and lesbian people
in this state to strip away rights and responsibilities that are given automatically
to every other couple,” Mason said.
The Marriage Affirmation Act passed this year despite an attempt by Virginia
Gov. Mark Warner, a Democrat, to strike some language from the measure. But
the portion of the law relied on by Judge Prosser, which bans recognition of
civil unions, was supported by Warner.
In his ruling, Prosser directly quoted the language of the Marriage Affirmation
Act. That law states that, “A civil union, partnership contract or other
arrangement between persons of the same sex purporting to bestow the privileges
or obligations of marriage is prohibited. Any such civil union, partnership
contract or other arrangement entered into by persons of the same sex in another
state or jurisdiction shall be void in all respects in Virginia and any contractual
rights created thereby shall be void and unenforceable.”
“It seems that I must be guided first of all by Virginia law,” Prosser
said. “That code section exists in Virginia. I can’t simply ignore
it.”
Price said Prosser’s ruling could set Virginia up to become “the
Las Vegas of gay divorce.”
“All you have to do is cross the border into this state and you no longer
have a civil union, you no longer have a domestic partnership, and for that
matter, if you’re the biological parent, you have sole and exclusive
rights to your kids,” Price said. “And whoever your partner was,
whether they were the parents for five minutes or 20 years, they suddenly have
no rights.”
The Marriage Affirmation Act was also cited by Phil Griffin, Lisa Miller-Jenkins’s
attorney, during his arguments.
“[Under Virginia law, Janet] is not a parent,” Griffin said. “She
is not a dad, and she is not a biological mom. She has no rights.”
Price contended that the case was not about which of the women is Isabella’s
biological mother, but rather, whether a parent can request a second custody
hearing in one state after they’ve already been given a custody order
they don’t like in another state.
In his statements to the judge, Price remained steadfast that two Virginia
laws already preclude that. Under the state’s Uniform Child Custody Enforcement & Jurisdiction
Act, Virginia is prohibited from interfering with any custody proceeding that
is taking place in another state. The Parental Kidnapping Prevention Act is
designed to keep a non-custodial parent from taking a child to another state
to obtain a more favorable custody decree.
But Prosser instead dwelled on the fact that Lisa Miller-Jenkins is Isabella’s
biological mother.
“It seems to me that these plethora of laws that seem to be walking
over each other … don’t supercede the fact that [Lisa] is the biological
mother,” Prosser said. By contrast, he referred to Janet Miller-Jenkins
as Lisa’s “friend,” and said that Price had given him no
evidence to suggest that Janet had acted as a parent to Isabella while the
two women were together.
After the ruling, Lisa Miller-Jenkins, who sat quietly next to her attorneys
during the hearing, smiled broadly. One of her attorneys, Peter Hansen, said
she was happy with the ruling.
“We’re pleased that the court has found jurisdiction for the claims
that we’ve asserted to exist, and that the case is properly brought to
Virginia to determine parentage,” Hansen said.
Price said that it is “highly likely” that Janet Miller-Jenkins
will appeal the judge’s decision.
Price said the case could eventually be used to question the constitutionality
of the Marriage Affirmation Act. That could happen if the Vermont court order,
which is expected in the next few weeks, and the eventual Virginia court order,
are at odds with one another, he said.
Bryan Anderton can be reached at banderton@washblade.com.
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