Aug 27, 2004  |  By: BRYAN ANDERTON  | COMMENTS     

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.

Anti-gay groups aid ‘former lesbian’
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 ...