Court: Civil Union custody battle belongs in Vermont
By Alan J. Keays
Herald Staff | November 29,2006
It didn’t take long Tuesday for news of a Virginia court’s ruling in a child custody case to travel north more than 550 miles to Janet Miller-Jenkins’ home in Fair Haven.
Soon after the decision was released in Richmond, Va., Miller-Jenkins got an afternoon phone call from her attorney in Virginia.
A three-judge panel of that state’s Court of Appeals ruled that Vermont, not Virginia, has jurisdiction in the national-headline making custody dispute. The legal clash has produced conflicting rulings from courts in both states, and stems from Miller-Jenkins’ civil union breakup with her former partner, Lisa Miller-Jenkins, who now lives in Virginia.
“I screamed and I’m sure I came about three or four feet off the ground jumping all around. I’m thrilled,” Janet Miller-Jenkins said.
“I knew it was a possibility that they could rule either way. I hoped and prayed that they would rule whatever is best for my daughter, and I believe her having both parents is best for her.”
The case revolves around 4 ½-year-old Isabella, conceived through artificial insemination and now living in Virginia with Lisa Miller-Jenkins. It has attracted national media attention, highlighting the fate of children in relationships sanctioned in one state, but not in another.
Lisa Miller-Jenkins has custody of Isabella. Although a Vermont family court granted Janet Miller-Jenkins visitation rights in 2004, later that year a Virginia court issued a contradictory ruling. It remains unclear when she will be able to visit Isabella, whom she last saw 25 months ago.
Rena M. Lindevaldsen is an attorney with Liberty Counsel in Virginia, which is representing Lisa Miller-Jenkins in Virginia.
“We are certainly disappointed in the Virginia Court of Appeals ruling. We believe it didn’t address some of the more difficult questions, which it should have,” Lindevaldsen said Tuesday.
“I don’t think the real core issue of parental rights has been addressed in either of the two courts, Vermont or Virginia, at this point. We’re hopeful for a court to hit that head on.”
Lisa Miller-Jenkins intends to appeal Tuesday’s ruling, although it was not immediately clear which Virginia court would hear the appeal.
“This is not over,” Lindevaldsen said. “We intend to pursue this as far as we can to protect Lisa’s parental rights.”
Lisa Miller-Jenkins could appeal to the full Virginia Court of Appeals for a rehearing, Lindevaldsen said. The ruling Tuesday was made by a three-judge panel of the appeals court.
In addition, Lindevaldsen said, Lisa Miller-Jenkins could appeal directly to the Virginia Supreme Court.
Neither court is required to accept the appeal.
“Both could deny,” Lindevaldsen said. “We could do one, ask for the full court of appeals to take it, and if they say no, we could go to the Virginia Supreme Court, and if they say no, as we indicated in Vermont, we still intend to go to the U.S. Supreme Court. That’s sort of the process we’re looking at.”
Lisa Miller-Jenkins has 15 days to decide whether to request a hearing before the full appeals court, and 30 days to decide whether to go directly to the Virginia Supreme Court.
“In the meantime, the Vermont order can’t be enforced because the original order of the trial court stands until we’ve exhausted our appeals,” Lindevaldsen said. “At this point, everything is at a standstill.”
Michael Mello, a Vermont Law School professor who authored a book on the legal debate over same-sex marriage, said that while he is surprised by the Virginia appeals court ruling, he believes it is the right decision.
“I have always thought this was a no-brainer. The federal law is pretty clear,” said Mello, a Virginia native. “It’s a race to the courthouse and it was filed in Vermont first.”
He said it’s difficult to predict what higher courts in Virginia will do next.
“This is such a contentious issue in Virginia,” Mello said.
Gary Buseck, legal director for Gay and Lesbian Advocates and Defenders, which is part of Janet Miller-Jenkins’s legal team, said Lisa Miller-Jenkins’s promise to appeal comes as no surprise.
“We were thrilled with this decision today,” Buseck added. “It was a fairly straightforward matter that there is a federal law that governs this type of situation.”
The first court to take up jurisdiction maintains jurisdiction, he said.
“Really, this dispute never would have gotten this far had this been a heterosexual couple because the law is crystal clear and Vermont clearly had jurisdiction.”
Lisa and Janet Miller-Jenkins were living in Virginia when they agreed five years ago to enter into a civil union in Vermont. The couple returned to Virginia and decided Lisa would conceive a child through artificial insemination.
Isabella was born in Virginia in April 2002, and the two women moved to Vermont where they broke up, filing to dissolve their civil union in Rutland Family Court.
Lisa Miller-Jenkins, who describes herself as a former lesbian, had moved with the child back to Virginia, where civil unions are not recognized. In Virginia, she sought a declaration of herself as Isabella’s sole parent.
A Virginia judge granted her request and contended that the Virginia Marriage Affirmation Act barred recognition of civil unions.
Janet Miller-Jenkins fought the Virginia action, arguing that a court in Vermont already had taken jurisdiction in the case and it should be heard in Rutland Family Court, where it was first filed.
In its ruling Tuesday, the Virginia appeals court agreed that Vermont courts have jurisdiction.
The case has been on appeal in Virginia since 2004.
Janet Miller-Jenkins said the last time she has seen Isabella was in October 2004.
“This brings me closer to being reunited with my daughter,” she said late Tuesday afternoon.
Contact Alan J. Keays at email@example.com.