Judge hands child to Vt. mother
By Brent Curtis
Staff Writer | November 21,2009
A Rutland Family Court judge ordered a first-of-its kind parent custody change Friday in a child-visitation dispute involving a Virginia woman and her former lesbian partner who lives in Fair Haven.
In a 21-page order, Judge William Cohen granted sole custody of 7-year-old Isabella Miller to her nonbiological but court-recognized parent, Janet Jenkins.
Jenkins and her former partner — and Isabella's biological mother — Lisa Miller, who renounced homosexuality after the couple split in 2003, have been in and out of courtrooms in Vermont and Virginia for years arguing over visitation rights.
Cohen's decision doesn't appear to spell an end to the fight either — Miller's attorney said Friday that appeal arguments will be made on multiple fronts.
After finding Miller in contempt of court earlier this year for denying Jenkins access to Isabella, Cohen said he decided the only way to ensure the child equal access to both parents was to switch custody.
"The court concludes that it is in the best interest of (Isabella) that Ms. Jenkins exercise parental rights and responsibilities," the judge said. "This court stated that continued interference by Ms. Miller with the relationship between (Isabella) and Ms. Jenkins could lead to a change of circumstances and outweigh the disruption that would occur if a change of custody were ordered."
While making it clear that Miller had been warned of a possible custody change, Cohen said the switch wasn't intended to punish the Virginia woman. Instead, Cohen said the order was based on the well-being of Isabella whose biological mother has only brought her to two visits with her nonbiological parent during the last two years.
In the short term, the judge said the change would cause some disruption in Isabella's life as she would need to move to a new home, school and community. However, Cohen said the transition wouldn't be out of the norm for a 7-year-old.
He also said the benefits of having access to both parents would be worth the difficulties of change.
"In the long term, the change in custody will be in (Isabella's) best interests as she will have the opportunity for maximum continuing physical and emotional contact with both parents," he said, adding that both parents were equal in terms of stability, financial resources, emotional availability and other considerations required for child rearing.
Where they weren't equal, he said, was in their willingness to work together. While Miller has repeatedly and consistently blocked Jenkins' access to Isabella, the judge said Jenkins has agreed to allow Miller access and would allow Isabella to continue to attend church events with her other parent.
Reached by telephone Friday evening, Jenkins said she wanted to do what was best for Isabella.
"I don't believe we need to be friends but I won't block her from Isabella," Jenkins said of Miller. "I'll definitely be supportive of them. I want my daughter to have both of her parents."
Jenkins said she's looking forward to New Year's Day when the custody switch is ordered to take place.
"Honestly, I'm just a mother who wants time with my daughter," she said. "I can't wait. I think my daughter will thrive here. I'm a stay-at-home mom with state licensed day-care so I will be here, and there will be built in playmates who are Isabella's age."
"I feel like all the ducks are lined up," she added.
But the custody battle appears far from over.
Miller's attorney, Mathew Staver, said Friday that Miller planned to fight for her daughter on two fronts: appealing Cohen's decision to the Vermont Supreme Court while continuing a battle in the Virginia Court of Appeals regarding the state's authority to enforce Vermont orders that conflict with Virginia's laws.
"We're certainly not happy with the order. I think Lisa is devastated that the court would grant custody to Jenkins — a person who Isabella doesn't know. The only person known to her is her mother," said Staver, who is the founder and chairman of the nonprofit Liberty Counsel. "We will ask the court to stay enforcement while the appeal moves forward. It's premature to set dates while the appeal is pending."
While the fight goes on, one legal observer said he believes Cohen's most recent decision will pave the way for future custody disputes involving same-sex couples.
"It's a very important decision that I think will be influential beyond the borders of the states where these cases have been argued," Carl Tobias, University of Richmond professor of law, said Friday in a phone interview from Virginia.
He said Cohen's decisions thus far had staying power because they treated the legal parents of civil unions — and by extension gay marriages — no differently than parents in heterosexual custody cases.
While the Vermont case appears destined for appeal and the court battle in Virginia continues, Tobias said he didn't think appeals courts in either state would overturn the decision.
"They've already been to that court a couple times now," he said referring to Virginia's court of appeals. "There's a point at which every court gets tired of people litigating when they have no valid case to make."