Missing person report filed for child
By Brent Curtis
STAFF WRITER | December 31,2009
Janet Jenkins filed a missing person report in Virginia on Wednesday in hopes of finding her 7-year-old daughter, according to her lawyer.
But it remains to be seen whether she will take custody of her nonbiological child Friday when a court order requiring her former lesbian partner, Lisa Miller, to transfer custody of the child takes effect.
"She hasn't complied with the court's orders up to this point. I don't know why she would now," said Sarah Star, a Middlebury lawyer representing Jenkins.
Star's predictions appear to be backed up by a decision written last week by Rutland Family Court Judge William Cohen, who said the whereabouts of Miller and her biological daughter, Isabella Miller, are unknown even to her Florida-based lawyers, who the judge said haven't heard from their client for some time.
Star said Wednesday afternoon that Jenkins, who is staying with family in the Falls Church area of Virginia, filed a missing person's report with police in that state – Miller has lived in Virginia since she and Isabella moved from Vermont in 2003.
A spokeswoman for Liberty Counsel, the Orlando, Fla.-based group representing Miller in court, said her attorneys were out of the office on vacations this week and could not be reached. A call to a cell phone belonging to Miller was not returned.
Jenkins could not be reached Wednesday either. However, police in Falls Church and Fairfax County in Virginia said they had no record of a missing person report for Isabella or of a report filed by Jenkins.
"I don't know what we could do at this point anyway," Fairfax County police spokeswoman Tawny Wright said. "If she's still in the legal custody of her mom down here, then she's not missing."
The custody situation will change after Friday.
But what will happen at that point is a matter of speculation to some degree.
Lawyers who practice in family courts in Vermont and Virginia said this week that in most cases the presiding judge would find a parent in civil contempt for failing to comply with a court order such as the one Miller faces.
But the case involving Miller and Jenkins, who dissolved their civil union in 2003, ventures into unfamiliar legal ground since it would require Virginia officials to enforce a Vermont law contrary to a Virginian law that does not recognize same-sex unions.
A number of challenges and appeals reaching all the way to the Virginia Supreme Court have sought to nullify Vermont's family court orders. An appeal arguing against Virginia's enforcement of orders recognizing out-of-state same-sex custody orders is pending before that state's Court of Appeals.
But University of Richmond Constitutional law professor Carl Tobias said he believes Virginia will enforce the Vermont court's ruling in accordance with the Uniform Child Custody Jurisdictional Act – an agreement recognized by every state to enforce each other's child custody orders.
"I think the judiciary down here is very aware of the Vermont court's order," Tobias said. "My sense is there's not a lot of patience down here for additional appeals. The length of time this case has encompassed has been extraordinary. I think you will see Virginia judges treat (same-sex) cases like heterosexual cases and I think they will be more than willing to enforce them. The system doesn't work if people don't comply with court orders. I think judges take that seriously."
How seriously Cohen reacts if and when Miller defies his order remains to be seen.
As it stands, the courts have a number of options ranging from fines to criminal charges if Miller refuses to turn her daughter over to Jenkins.
Rutland lawyer Stephen Dardek and Burlington attorney Kurt Hughes think neither extreme would likely apply to Miller's case. Dardeck and Hughes are not involved in the case, though both practice extensively in Vermont family courts.
"I've never seen criminal contempt in a case like that," Dardek said. "I don't see criminal charges at this point. If she disappears with the child, then it certainly could be considered."
Hughes agreed with that assessment although he said the court could send Miller to jail without charging her with a crime.
"She could be incarcerated for civil contempt until she complies with the order," he said. "That, in my opinion, is the most likely scenario."
While criminal charges are unlikely, there is a criminal offense that could apply – one which Rutland County State's Attorney Marc Brierre said Wednesday he has considered in similar cases.
The felony charge of custodial interference applies in cases where "a person commits custodial interference by taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than 18 years old."
The charge carries a potential five-year jail sentence. There are also exceptions for parents who withhold a child if they act in "good faith to protect the child from real and imminent physical danger."
Brierre said Wednesday his office does not normally interfere in family court matters. But he said if there were an investigation in the case, his office would review the facts.
As the prosecutor in the same county as the family court that issued the order, only Brierre or the state Attorney General's office could bring criminal charges in the case.
"If the allegations were applicable we would consider filing charges," he said.