Dec 01, 2006  |  By: ELIZABETH A. PERRY  | COMMENTS     

A Vermont lesbian won a legal victory this week when the Court of Appeals of Virginia urged a lower court to issue a new judgment recognizing Vermont’s authority in a protracted custody battle.

Janet Jenkins had previously been awarded liberal visitation rights by a Vermont family court but her former partner, Lisa Miller, with whom she had entered into a Vermont civil union, fought to overturn that ruling.

Tuesday’s ruling found that the lower Virginia court did not have the right to exercise jurisdiction when it granted sole parental rights in October 2004, to Miller, the birth mother.

The three-judge panel ruled that under the federal Parental Kidnapping Prevention Act (PKPA), Virginia courts could not rule on a case that was already in process in Vermont.

Jenkins praised the ruling in an interview with the Blade this week.

“It couldn’t have been better for my daughter and me,” Jenkins said. “I am so excited that Virginia stepped up and read the law the same way Vermont read it.”

The Virginia Court of Appeals’ statement read, “the [Virginia] trial court erred in failing to recognize that the PKPA barred [the trial court’s] exercise of jurisdiction. Accordingly we vacate the orders of the trial court and remand this case with instruction to grant full faith and credit to the custody and visitation orders of the Vermont court.”

Joseph Price, lead attorney for Janet Jenkins, said he is ecstatic over the decision.

“It was a long time coming but we are happy to have a decision,” he said. “The other side did its best to muddy the waters and turn it into a question of recognizing civil unions and gay marriages in Virginia. We are glad the appeals court saw through that.”

Price is a witness in the ongoing investigation into the stabbing death of Robert Wone, a prominent area lawyer. Wone was found dead in Price’s home earlier this year; the two were friends. No arrests have been made in the case.

“I think about Robert every day,” Price said. “I’m sorry he’s not here to share in my happiness over this decision. He followed this case and he would have been happy for Janet and her daughter.”

Case headed to
U.S. Supreme Court?

Mathew Staver, founder and chair of Liberty Counsel and dean of the Liberty University School of Law, represented Miller, who continues to refuse interview requests. He said his client is not deterred by the decision and intends to ask for a hearing in front of the entire Virginia appellate court, and is prepared to take the case to the U.S. Supreme Court.

“The three-judge court missed the mark by saying it was a simple matter and the Virginia Affirmation of Marriage Act does not apply,” he said. “DOMA does not allow for preemption of marriage policy. The issue comes back to where it was in the beginning of the case — the clash between PKPA and DOMA.”

The Marriage Affirmation Act makes illegal any “partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage.”

Lisa Miller and Janet Jenkins were Virginia residents who were together for two years before they moved to Vermont and were joined in a civil union in December 2000. They moved back to Virginia and decided to have a child together through artificial insemination.

Miller gave birth to a daughter, Isabella, in April 2002 and the Miller-Jenkins family moved to Vermont three months later. The couple separated in November 2003, and Jenkins filed to dissolve the civil union in Vermont Family Court. When the court awarded Jenkins liberal visitation rights in June 2004, Miller moved back to Virginia with Isabella, and claimed she was no longer a lesbian.

In an August 2006 interview with the Blade, Staver said that even if Miller was still a lesbian, the Liberty Counsel would have taken the case because of the legal implications involved.

“Lisa became a Christian,” he said. “She didn’t want to be in the lesbian lifestyle anymore.”

The Liberty Counsel is affiliated with Rev. Jerry Falwell’s Liberty University in Lynchburg, Va. In an August 2006 interview with the Blade, Price said the organization exists to thwart cases that involve advancement of equal rights for gays and lesbians.

He also said that representation is offered free for such cases, and that Lisa Miller distributed pictures of herself and her daughter to be used in ads for Vermont Renewal, another conservative religious organization helping with Lisa’s defense.

“Lisa indicates she is no longer a lesbian and that she is straight now,” Price said. “She claims ...