Split decision in custody battle
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By Gordon Dritschilo Herald Staff - Published: January 29, 2009
Neither Lisa Miller nor Janet Jenkins got everything they asked for Wednesday in Rutland Family Court.
Miller sought to eliminate or reduce the number of court-ordered visits her former civil-union partner has with her daughter, Isabella. Judge William Cohen denied that motion.
Jenkins sought primary custody of the 6-year-old girl. Cohen also denied that motion, but put Miller on notice that continued violation of court orders would put her custody in jeopardy. He also ordered Jenkins get custody of the child in Vermont for five weeks during the summer.
"At some point, Miss Miller's behavior is forcing a hand," Cohen said.
Isabella was born in 2002, when Miller and Jenkins were still together. Since they split up in 2003, they have been locked in a custody battle.
Jenkins lives in Fair Haven. Miller moved to Virginia, where state law specifically rejects the legitimacy of same-sex unions.
In court Wednesday, her attorney, Stephen Crampton, said she did not comply with Vermont court orders because she did not believe Virginia authorities would enforce them.
The jurisdictional battle went before the supreme courts of each state, with Vermont's asserting jurisdiction and Virginia's eventually agreeing. The U.S. Supreme Court declined to hear the case.
The daylong hearing Wednesday started with Miller testifying that Isabella became increasingly distraught after visits with Jenkins. A counselor who has worked with Isabella also testified, characterizing Isabella's stress as typical of a child caught in a custody battle.
Jenkins testified on Miller denying her access to Isabella, her desire to see more of the child — consistently referring to her as "my daughter" — and her willingness to grant Miller more access as custodial parent than Miller has granted her.
Jenkins said she was repeatedly told through their attorneys that Miller would not make the child available for court-ordered visits in Virginia and that she went eight months without seeing Isabella before a visit over Martin Luther King Day weekend.
She testified that she was ready to take custody of Isabella, that she lived a short walk from Fair Haven Grade School, that she has experience with 6-year-olds from her work running a daycare and that she had a counselor lined up to help Isabella with any transition issues.
"My daughter could set down roots because I plan to live there, grow old there and turn my house over to her," Jenkins said.
Crampton argued that the girl's behavior was a cause for concern and that Virginia's willingness to enforce Vermont's court orders would assure Miller's future compliance.
He also argued that a change of custody would amount to punishing the child for her mother's misdeeds, saying the disruption of moving from Vermont to Virginia in the middle of the school year was not in Isabella's best interest.
If the court felt it needed to transfer custody, Crampton said, it should at least wait until the summer.
A third attorney representing Isabella argued that as the child had only ever known a home with Miller, transferring custody to Jenkins would not be in her best interest.
Cohen said Vermont law seeks to maximize social contact between a child and both parents, and that the Vermont Supreme Court has held that Jenkins is one of Isabella's parents.
He said Miller was put on notice early on that her refusal to comply could lead to a loss of custody, and that she had repeatedly violated the court's orders. However, he said Jenkins had not met the "high burden of proof" needed to show that a change of custody was in Isabella's best interest.
Crampton said Miller was grateful to retain custody.
"She's still pursuing appeals in Virginia, but we are hopeful we will not be back in Vermont for a while," he said.
Contact Gordon Dritschilo at gordon.dritschilo@rutlandherald.com.
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