Janet Jenkins and her daughter, Isabella, who’s now 4, pictured two years ago, the last time Jenkins says she saw her. (Photo courtesy of Janet Jenkins)
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ELIZABETH A. PERRY
Friday, December 08, 2006
When a lesbian couple living in Vermont decided to dissolve their civil union in September 2003, they had no idea their 2-year-old daughter would end up at the center of a prolonged and bitter custody battle that would draw national attention and take multiple court rulings in two states to decide.
In a phone interview with the Blade, Janet Jenkins, 42, told her side of the complex and emotional story.
“I would rather not be going to court,” she said. “I had no idea anything like this would happen.
I thought it would be cut and dry. We agreed to separation terms that were amicable.”
Jenkins won a legal victory Nov. 28 when the Court of Appeals of Virginia urged a lower court to issue a new judgment recognizing Vermont’s authority in the custody battle. Jenkins had previously been awarded liberal visitation rights by a Vermont family court. After the decision was rendered, her former partner, Lisa Miller, 38, took the couple’s daughter, Isabella Miller-Jenkins, now 4, to Virginia where she fought to overturn that ruling.
The most recent 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, a native of Falls Church, Va., lived with Miller in Virginia from February 1998 to July 2002. They traveled to Vermont in December 2000 to enter into a civil union, returned to Virginia and decided to start a family via artificial insemination. After a number of unsuccessful attempts, Miller gave birth to Isabella in April 2002. That summer the family moved to Vermont.
The couple decided to have another child, but Miller miscarried in July 2003, which is when the problems in their relationship began, Jenkins said. The miscarriage proved too much for the couple to endure and they split in September 2003.
“The surge of hormones, the elation of being pregnant and the hard crash of losing the baby is when it all changed,” Jenkins said.
Help from an unlikely source
Miller moved back to Virginia with Isabella despite Jenkins’ objections and filed to have the civil union dissolved in Vermont family court in November 2003. She requested liberal visitation rights for Jenkins and child support payments for Isabella. In June 2004, the Vermont court awarded Jenkins liberal visitation rights.
But in the interim, Miller had a change of heart. Now dissatisfied with the Vermont court’s ruling, Miller decided to pursue full custody of the couple’s daughter in Virginia. Jenkins claims that Miller first sought help from gay rights groups Gay & Lesbian Advocates & Defenders and Lambda Legal, but when they told her that Jenkins had legal custodial rights, Miller then turned to an “ex-gay” group for help. Representatives from GLAD and Lambda Legal said they could not confirm or deny that Miller contacted them seeking legal advice.
“We are ethically required to keep confidential information about people who call us seeking advice or assistance,” said Greg Nevins, senior staff attorney in Lambda Legal’s southern regional office. “The law demands that all such information — including the identities of the people who call — be shielded under attorney-client privilege, and ultimately, protects the privacy of individuals seeking our help.”
Miller also sought help from anti-gay groups in Virginia and an “ex-gay” organization in Vermont called the Center for American Cultural Renewal, an organization calling for the repeal of Vermont’s civil union law, Jenkins said. The center announced it was funding Lisa Miller’s legal efforts to win sole parental rights to the child. In a fund-raising letter, the group condemned Jenkins for “exploiting” the child to “further the extreme ideology of the radical homosexual agenda.” The letter included a photo of Miller and Isabella.
During this time, Jenkins said Miller reconciled with her brother, a born-again Christian she had not seen in six years, and became a Christian herself. Jenkins’ attorney, Joseph Price, said court records indicate Miller then said she was no longer a lesbian.
“We were Unitarian Universalists because we wanted Isabella to be free to [worship] anywhere she wanted,” Jenkins said. “If you track who is supporting her financially, she wouldn’t be a Christian.”
Lawyer says Jenkins became abusive
Miller is being represented by the Liberty Counsel, which is affiliated with Rev. Jerry Falwell’s Liberty University in Lynchburg, Va. She has repeatedly declined Blade requests for an interview. Her lawyer, Mathew Staver, founder and chair of Liberty Counsel and dean of the Liberty University School of Law, released an e-mail statement in response to Jenkins’ comments, which reads:
“It is preposterous to suggest that Lisa is a Christian because she is being allegedly supported. She became a Christian long before she knew about Liberty Counsel. Lisa left the relationship when she became a Christian and Janet became abusive.”
Price said that allegations of abuse by Jenkins are unfounded. He added that the Liberty Counsel is an organization that “promotes hate and intolerance.”
“Liberty Counsel is not interested in the best interests of Janet and Lisa’s daughter,” Price said. “Instead they take advantage of people like Lisa, who declared herself ‘straight’ to get Liberty Counsel’s help, by using them to advance their anti-civil rights agenda. Like so-called legal rights organizations that opposed interracial marriage, Liberty Counsel trades on fear and ignorance in hopes of denying gay and lesbian Americans equal rights under the law.”
Jenkins said that although she does not like what her ex-partner did, she bears no malice toward Miller.
“I wouldn’t want to make the same choices,” she said. “It is sad people have swooped in like vultures for their cause, because they aren’t helping my daughter. They are using Lisa to help their cause and hurting Isabella.”
A private life
turned upside down
Miller filed suit for full custody on July 1, 2004, the same day the Marriage Affirmation Act went into effect in Virginia. The law bars same-sex couples from entering into contracts that resemble marriage rights.
Judge John Prosser of the Frederick County Circuit Court in Virginia declared that his court, rather than the Vermont family court, had jurisdiction over the case under the Marriage Affirmation Act and the couple’s civil union was “null and void” in Virginia. The court ruled that Jenkins was Miller’s “friend,” and that she had no parental rights.
Judge William D. Cohen of the Rutland County Family Court in Vermont rejected Prosser’s ruling and agreed with Price’s arguments that both the Vermont civil union law and a federal statute called the Parental Kidnapping Prevention Act of 1980, gave the Vermont court 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. Miller was held in contempt of the Vermont court for refusing to comply with the custody order and she appealed to the state supreme court.
At the same time, Jenkins appealed the Virginia court’s decision to the state Supreme Court. She said that until the case went on appeal with the state court, she led a private life running a before- and after-school care program in a “Norman Rockwell” kind of town.
“I still live a very private life,” she said. “I love children and enjoy working with them. Most everyone knew me as a businessperson before they saw me on the front page. They came over in tears, saying that what Lisa was doing wasn’t right. My life didn’t become a tabloid until she denied the custody order.”
The latest ruling by the Virginia court in favor of Jenkins’ parental visitation rights is good news for her, but there are still more obstacles to overcome before the battle ends. She recently went back to court for a child support hearing and is gearing up for round two in January. That is when her civil union will legally end and permanent custody of Isabella will be resolved.
“The whole thing has changed,” she said. “Now I’m going for full physical custody of Isabella, and liberal visitation rights for Lisa so she can’t kidnap her again.”
Jenkins said she is encouraged by a recent Pennsylvania Supreme Court decision involving a lesbian couple’s twin sons. Patricia Jones, the children’s non-biological mother, was granted primary physical custody, despite the objections of the birth mother, Ellen Boring Jones.
“I am very encouraged at this point,” Jenkins said. “I’ve got a great life and she’s the only thing missing.”
Price also sees room for cautious optimism. He said that while the Pennsylvania case does not have precedent setting value, it can still be applied to the Miller-Jenkins case. In both cases, the birth mothers moved with their children across state lines away from their non-biological mothers.
“This would be very similar to our case,” he said. “I won’t be personally involved in the Vermont custody hearing, but Ted Parisi, who is Janet’s local Vermont lawyer will argue that Lisa has done everything possible to destroy Janet’s relationship with her daughter.”
Jenkins said that although the fight has been a long and difficult one, she never considered giving up.
“I would never abandon Isabella,” she said. “She has no power over this situation and didn’t choose it. It is time to behave like adults and do what is best for her. It’s only been about Isabella. I miss her and have high hopes we will be together soon.
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