Features
Crossing State Lines
Crossing State
Lines
Conflicting
rulings may send custody case to Supreme Court
by Lynn McNicol
Lambda
Legal, the ACLU of Virginia, and Equality Virginia filed an appeal last
month on behalf of a Vermont lesbian being denied visitation with her
child who is with her biological mother in Virginia. Just weeks prior
to the appeal, a Vermont judge ruled for the first time that both members
of a same-sex civil union are the legal parents of a child born to one
of them.
The case being fought across state lines
could wind up in the Supreme Court for a final decision. It also challenges
Virginia’s anti-gay marriage law, which went into effect last year.
Janet and Lisa Miller-Jenkins, after living
together as a lesbian couple in Virginia for two years, traveled to Vermont
to obtain a civil union in 2000. After returning to Virginia, they decided
to have a child together, and Lisa gave birth to Isabella in 2002.
Several months later the family moved to
Fair Haven, Vermont, because of Virginia's unwelcoming attitude toward
gay families. The following year, the couple ended their relationship,
and Lisa left for Virginia with their child. Rutland County Family Court
Judge William Cohen agreed to dissolve the civil union last June and issued
a temporary custody order for Lisa and visitation rights for Janet.
But on July 1, 2004 – the same day
Virginia's "Marriage Affirmation Act" went into effect –
Lisa asked a Virginia judge to give her sole custody of their daughter.
Citing the new anti-gay marriage law, which denies the validity of any
other state's civil union or same-sex marriage, the Frederick County Circuit
Court approved her request. Janet's visits with her daughter have been
sporadic since the decision. "I had quite a bit of contact with her
(Isabella) until Virginia came out with that (law)," Janet said.
Janet, who remains in Vermont where she runs a
pre-school, said she did not formally adopt Isabella because she was advised
the civil union would in effect define her as the child's other parent.
"That is exactly why I'm here... why we moved here," she said.
Janet would have adopted Isabella if the couple had stayed in Virginia,
she said, but she would be in worse shape there because of the state's
homophobic climate. Lisa could not be reached for comment.
Joseph Price, of the Washington, D.C., law
firm Arent Fox and lead attorney for Janet Miller-Jenkins' appeal, said
Vermont clearly has jurisdiction in the case. "You can't have custody
proceedings going on in two states," he said, "A Virginia court
cannot modify a Vermont order."
"She (Janet) has rights both under
Vermont law and under Virginia law," Price asserted – and under
federal law as well.
The Parental Kidnapping Prevention Act, a federal law, and Virginia's
Uniform Child Custody Jurisdiction and Enforcement Act, are both cited
in the appeal as laws that clearly give the Vermont court jurisdiction,
according to a news release from Lambda Legal.
"This case presents the exact situation
that the PKPA and UCCJEA [the federal and Virginia laws] were designed
to address," states the argument for the appeal filed December 8,
2004. "A person seeking custody files an action in one state. She
does not get the result she wants. Then, she files a custody action in
a second state, where the law is more favorable to her claim. Both Congress
and the Virginia legislature have found this gamesmanship harmful to children
and unacceptable, and prohibit the second state from exercising jurisdiction,
irrespective of any other public policy concerns."
While both courts continue to hold to their
respective positions, Judge Cohen issued his decision in late November
giving parental rights to both partners of a civil union. Cohen ruled
the Miller-Jenkins case can be set for a final hearing in the Rutland
court to determine custody and child support.
Price is optimistic that the Virginia court
will do the right thing by accepting the appeal. He expects a decision
sometime this spring.
Lynn McNicol is a freelance writer who lives in Burlington.