Aug 11, 2006  |  By: ELIZABETH A. PERRY  | COMMENTS     

The Vermont Supreme Court ruled Aug. 4 that Vermont courts, not courts in Virginia, have exclusive jurisdiction in a two-state custody dispute involving a lesbian couple and their four-year-old daughter.

The decision was handed down in the case of Lisa and Janet Miller-Jenkins, Virginia residents who moved to Vermont and were joined in a civil union. After the couple separated in 2003, Lisa Miller-Jenkins moved back to Virginia with the child, Isabella, and claimed she was no longer a lesbian.

“We applaud that a court got it right today,” said Jay Squires, board chair of the Equality Virginia Education Fund, who is serving as Janet Miller-Jenkins’ co-counsel. “Both state and federal laws say that a court order grant-ing custody can’t be overturned by going to another state court and shopping for a second opinion.”

He added that the decision is consistent with the federal Uniform Child Custody Jurisdiction Act & Parental Kidnapping Protection Act, which are designed to prohibit “this type of forum shopping.”

The unanimous Vermont decision granting visitation rights to Janet Miller-Jenkins contradicts several rulings issued by Virginia courts that cited the state’s anti-gay laws in granting full custody to Lisa.

Lead counsel for Janet Miller-Jenkins was Joseph Price, of the Washington, D.C., firm Arent Fox and a member of the Equality Virginia Education Fund Board. Price called the decision “well-reasoned” and said it took Janet Miller-Jenkins’ rights as a primary caregiver, or “parent-in-fact” into account. He said Vermont and Virginia state courts have statutes they can use to determine custody, even if the parent is not related to the child, such as when a grandparent sues for custody.

“Even without a civil union [Janet Miller-Jenkins] was a parent-in-fact,” he said. “She was providing support that a parent would normally provide, such as nurturing, food, clothing and care, just as any father would, even if she was not the biological parent.”

Lisa Miller-Jenkins is the child’s biological parent. Her lead counsel, Mathew Staver of the Liberty Counsel, said his client was disappointed by the decision.

“They said Lisa gave no reason why visitation was not attempted,” he said. “There were times that were offered by Lisa to have Janet visit and Janet did not make herself available for those.”

Janet and Lisa Miller-Jenkins declined to be interviewed for this story.

Va. ruling expected soon

With the help of the Liberty Counsel, Lisa Miller-Jenkins filed a petition July 1, 2004 in Frederick County, Va., seeking full custody of Isabella and declaring Janet Miller-Jenkins had no parental rights. The Virginia trial judge used the Affirmation of Marriage Act to rule in Lisa Miller-Jenkins’ favor. Lambda Legal and the ACLU, with the support of the Equality Virginia Education Fund and Arent Fox, appealed the decision on Janet Miller-Jenkins’ behalf. The Virginia Court of Appeals stayed its ruling pending a decision from Vermont. Both Price and Staver said they expect the Virginia court to rule soon.

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.”

“This is the classic kind of case crying out for Supreme Court review: two diametrically opposed state court decisions on an incredibly important issue,” Vermont law school professor Michael Mello told the Associated Press.
 

Renouncing the
‘lesbian lifestyle’

Contrary to reports that his client went court shopping in Virginia after the initial Vermont decision, Staver said Lisa Miller-Jenkins never fled and was in Virginia the entire time.

“She only lived in Vermont temporarily,” said Staver. “Lisa then returned to Virginia, where she was before any court action started.”

Lisa Miller-Jenkins’ relocation to Virginia makes enforcing the Vermont decision difficult for everyone involved, especially Isabella. Staver said Janet Miller-Jenkins and the child do not know each other well and that Lisa will continue to abide by the Virginia court decision, which says there is no validity to the Vermont court orders. Price said that until the Virginia appellate court rules, Lisa Miller-Jenkins can stay in Virginia with Isabella.

“Right now there is no way for it to be enforced,” said Price. “Lisa is being held in contempt of court [for taking the child across state lines]. The hope is that the Virginia trials court will reverse its decision that says it’s OK for her to do that. I think the Virginia court will come to the same conclusion — that Vermont has jurisdiction and the Virginia court has no legal reason to interfere with decisions in Vermont courts.”

Staver said Lisa Miller-Jenkins renounced what he called her “lesbian lifestyle” when she ...