Custody After Civil
Union Pits States and Judges
By ADAM LIPTAK,
NYTimes on the Web, September 8, 2005
MONTPELIER, Vt., Sept. 7 --
Judges in Vermont and Virginia have different ideas about what is best for
Isabella Miller-Jenkins, 3, born to a woman who had a civil union with another
woman in Vermont. The relationship ended two years ago. Now each
woman says Isabella is her daughter, with one asserting exclusive motherhood.
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Alden Pellet/Associated Press
Janet
Miller-Jenkins listening to arguments on Wednesday in Montpelier,
Vt., in a custody case that involves two women and a 3-year-old |
The judge in Vermont
ruled that the women should "be treated no differently than a husband and wife."
He established a visiting schedule and held the biological mother, Lisa Miller,
in contempt of court when she failed to comply with it.
The judge in Virginia ruled that Ms. Miller had the sole right to decide who
could see the child. He ruled that the former partner, Janet
Miller-Jenkins, had no "parentage or visitation rights."
Legal experts say the decisions, which reached State Supreme Court here on
Wednesday, are the first to present a direct conflict between two state courts
on a substantial legal question arising from a same-sex couple's union.
The decisions offer a preview, the experts added, of what are quite likely to be
many similar conflicts around the nation.
Ms. Miller moved back to Virginia, where Isabella was born, in September 2003.
The couple had visited Vermont briefly for the civil union ceremony in 2000 and
lived there for more than a year after Isabella was born in 2002.
"When I left Janet," Ms. Miller said in a telephone interview, "I left the
homosexual lifestyle and drew closer to God."
Ms. Miller-Jenkins, who declined to be interviewed, has said the couple planned
and cared for Isabella together. She read a statement outside the
courthouse after arguments on Wednesday.
"I sincerely believe," she said, "that it is best for my daughter that both of
her parents continue to be an active, loving, responsible part of her life."
The justices here were largely skeptical of the arguments offered by a lawyer
for Ms. Miller, who, like her former partner, had been known as Ms.
Miller-Jenkins. The justices also indicated that they were working in
uncharted territory.
"The assisted reproductive technologies are galloping ahead of existing law,"
Justice Marilyn S. Skoglund said.
A few minutes later, Justice Denise R. Johnson asked about the consequences of
inconsistent rulings. A lawyer for Ms. Miller-Jenkins, Jennifer L. Levi,
said the question was premature. A Virginia appeals court will hear
arguments in that suit next Wednesday.
"I'm just trying to figure out what the effect of our decision is," Justice
Johnson said, in a tone suggesting it might have no effect because Isabella and
Ms. Miller live in Virginia.
The cases involve the interaction of two sets of laws. At the state level,
Vermont and Virginia have laws that say the first court to take jurisdiction of
a custody case should make the final determination. That would seem to
help Ms. Miller-Jenkins here.
In November 2003, it was Ms. Miller, the Virginian, who filed papers in Vermont
to dissolve the union. In them, Ms. Miller acknowledged that Isabella was
a child of the union and asked the court to allow her former partner to have
contact with the girl. Her lawyers have since taken varying positions.
Ms. Miller now says she was confused and did not mean to acknowledge any
parental relationship between her former partner and Isabella.
A 2004 Virginia law, the Marriage Affirmation Act, makes same-sex unions from
other states "void in all respects in Virginia." Judge John R. Prosser, of
Frederick County Circuit Court in Winchester, Va., relied on that law in October
in granting sole custody of Isabella to Ms. Miller.
Two potentially conflicting federal laws add to the confusion. The
Parental Kidnapping Prevention Act largely tracks the state custody laws and
requires other states to defer to the first courts to hear such cases. But
the federal Defense of Marriage Act says states need not give effect to same-sex
unions.
Joan Hollinger, who teaches adoption law at the University of California,
Berkeley, said the Vermont judge had the better legal arguments. But, Ms.
Hollinger added, "Vermont courts are in practical terms powerless to enforce
their valid orders in Virginia if Virginia courts simply say no."
If the states' highest courts issue conflicting decisions, the case could head
for the United States Supreme Court, said Mathew D. Staver, a lawyer for Ms.
Miller. Mr. Staver added that similar conflicts could arise from decisions in
California, where State Supreme Court ruled last month that both people in a
lesbian couple should be considered a child's parents in many circumstances.
The Legislature in Sacramento passed a same-sex marriage law on Tuesday.
Ms. Levi disagreed, saying the case was an instance of the ordinary heartbreak
after a family breaks up.
"It's an unfortunate reality that children get put in the middle," she said.
"Ultimately, what this case is going to decide is whether children born to
same-sex couples should be treated the same or differently as other children."
Andrew Koppelman, a law professor at Northwestern, addressed such case in a book
on interstate recognition of gay marriages that Yale University Press will
publish next year.
"If the Virginia court is correct," Professor Koppelman wrote, "then no parental
right arising out of a same-sex marriage is secure anywhere in the United
States."
Ms. Miller said Isabella neither knew about the case nor cares about its
consequences. "She doesn't even ask about Janet," Ms. Miller said.
"I am the only mother."
In Vermont, Judge Cohen held Ms. Miller in contempt in September for not
allowing visits to Isabella. He has not imposed sanctions.
"The judicial system as a whole simply cannot allow parties to try to take
advantage of legal and cultural differences," he wrote, "which may make one
state favor the position of a particular party over another."
Ms. Miller said she found the idea that a court could force her to allow
Isabella to visit Ms. Miller-Jenkins particularly hurtful. "It would be
like somebody off the streets coming and taking my daughter," she said.
"They have no ties to my daughter."
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