Dispatches from the Creation Wars

Huge Victory on Gay Parenting

I’ve written before about the case of Lisa Miller and Janet Jenkins, aka Lisa and Janet Miller-Jenkins. They were a lesbian couple who lived first in Virginia for several years, then in Vermont, where civil unions are legal. They were joined in one legally, changed their names legally to symbolize that and then decided to have a child through artificial insemination. They decided that Lisa would carry the child, but they went through the entire process together and raised the child together for nearly two years. At that point, the relationship went bad and Lisa filed to dissolve the civil union in Vermont. Today Janet won a major victory in Virginia court. Below the fold I’ll print the whole story from the court’s opinion.

On November 24, 2003, Lisa filed in the Vermont court a “Complaint for Civil Union
Dissolution.” She designated IMJ as “the biological or adoptive” child of the “civil union.” She
asked the Vermont court to dissolve the civil union, to award her legal and physical “rights and
responsibilities for the minor child,” to award Janet “suitable parent/child contact (supervised),”
and to “award payment of suitable child support money.”

On June 17, 2004, the Vermont court entered a “Temporary Order Re: Parental Rights &
Responsibilities.” In that order, the Vermont court awarded Lisa “temporary legal and physical
responsibility for the minor child of the parties,” and awarded Janet “on a temporary basis,
parent-child contact with the minor child as follows . . . .” The order then listed the specifics of
that contact, and in so listing thrice used the word “visitation.”

On July 1, 2004, the day Virginia’s Marriage Affirmation Act (“MAA”), Code 20-45.3
became law, Lisa filed in the trial court a “Petition to Establish Parentage and for Declaratory
Relief.” She asserted that she had “sole custody” of IMJ, and asked the court (1) to declare that
she was “the sole parent of” IMJ, (2) to rule that she was “to be the sole parent of and to have
sole parental rights over” IMJ, (3) to adjudicate any parental rights claimed by Janet “to be
nugatory, void, illegal and/or unenforceable,” and (4) to award her attorney’s fees and costs.

On July 19, 2004, after learning of the petition filed by Lisa in Virginia, the Vermont
court entered the following order:

This Vermont Court has and will continue to have
jurisdiction over this case including all parent-child contact issues.
This Court is unaware of any proceeding available in a state that
does not recognize a civil union to resolve the issue of this case.
This Court will not and cannot defer to a different State that would
preclude the parties from a remedy.

The Temporary Order for parent-child contact [is] to be
followed. Failure of the custodial parent to allow contact will
result in an immediate hearing on the need to change custody.

On July 29, 2004, Janet filed a demurrer to Lisa’s Virginia petition. On August 18, 2004,
the trial court entered an order (1) recognizing that Janet was entering a special appearance for
the purpose of contesting jurisdiction, (2) directing the parties to file memoranda addressing the
question of jurisdiction, and (3) staying all visitation between Janet and IMJ except for
supervised visitation in Virginia. Following an August 24, 2004 hearing, the trial court ruled it
had jurisdiction pursuant to the MAA and the UCCJEA. It memorialized this ruling in a
September 9, 2004 order.

Meanwhile, the Vermont court, by order entered September 2, 2004, held Lisa in
contempt for refusing to comply with the child visitation terms of its June 17, 2004 order.

On October 15, 2004, the trial court entered the final order in this case, setting forth the
holdings delineated in the first paragraph of this opinion.

On appeal by Lisa, the Supreme Court of Vermont (“Vermont Supreme Court”) affirmed
the judgment of the Vermont court, holding, inter alia, that the civil union entered into by Lisa
and Janet was valid under Vermont law; that the Vermont court had jurisdiction to dissolve that
civil union and to determine all its implications, including the parentage of and parental rights
and responsibilities with respect to IMJ; and that the Vermont court acted properly in holding
Janet to be a parent of IMJ and in assigning parental rights and responsibilities to her.

Basically, Lisa treated Janet as the parent to this child. Filed court documents in Vermont calling her a parent to this child. Then somewhere along the line she was “born again” and decided that being a lesbian was a sin and that Janet could no longer be a parent to their child and filed in Virginia claiming she’s not a parent at all. But a Federal law called the Parental Kidnapping Prevention Act makes it quite clear that when a parent takes a child from one state to another when there is a valid court custody or visitation order in the original state, the courts of the second state have no authority to change that order and must enforce it:

“The appropriate authorities of every State shall enforce according to its terms, and shall not modify…any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.”

Or as the Supreme Court put it in Thompson v Thompson, “Once a State exercises jurisdiction consistently with the provisions of the Act, no other State may exercise concurrent jurisdiction over the custody dispute, even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State’s ensuing custody decree.

Since there was a valid Vermont custody and visitation ruling in place, Virginia had no choice but to comply with it and enforce it, and the Virginia appeals court ruled so yesterday. This is a major victory that will likely prevent many children from being denied contact with one parent at the insistence of the other in the future.

Comments

  1. #1 Scott Simmons
    November 30, 2006

    Shall we start a pool on how long it’ll be before some Worldnet Daily or STACLoon decries the courts’ rulings that this mother is entitled to visitation with her child as ‘anti-family’?

    If so, dibs on six-and-one-half seconds.

  2. #2 raj
    November 30, 2006

    Complicated case, but the crux of it is that the VA lesbian (the one in physical custody of the child) initially filed for dissolution of her civil union (“CU”) with the VT lesbian (the one seeking visitation rights with the child) in VT courts. That gave the VT courts jurisdiction over all aspects of the CU, including child custody and visitation issues. That is what the VA court of appeals recognized.

    If the VA lesbian had initially filed for CU dissolution in VA instead of VT, the result might have been different. On the other hand, if she had initially filed for CU dissolution in VA, VA courts might have refused to entertain the filing, because VA does not recognize CUs.

  3. #3 kehrsam
    November 30, 2006

    raj: Technically, the Custody case is separate from the issue of the Civil Union. This is because the “divorce” of the Cu is a one-time affair, whereas the Court will exercise continuing jurisdiction over the custody. That’s what this ruling was about, whether Virginia could substitute itself for Vermont as the Court overseeing the case based upon VA’s failure to recognize the VT CU.

    When you get down to it, the fact that a CU is involved is a big straw man. Suppose they had no sort of legal arrangement: Many jurisdictions would still have recognized the role the non-biological parent played and awarded visitation, while some would allow cuctody.

    The real issue here was jurisdiction and whether VA would recognize the jurisdiction of the VT Court. To resolve cases such as this, there is a Federal statute (PKPA) that tells state courts what to do. The VA District Court decided to ignore the statute, and the Court of Appeals smacked them down. Quite properly.

  4. #4 Boo
    November 30, 2006

    It will be interesting to see how long Lisa continues to claim “ex-gay” status once the legal issues are resolved and she doesn’t need the Alliance Defense Fund’s free legal help any more.

  5. #5 kim
    November 30, 2006

    Good news!

  6. #6 SharonB
    November 30, 2006

    Boo:
    Are you sure the ADF was in on this one? They have intervened in cases like this before, like mine. But on this one, I thought some airy-fairy quasi-religious-legal-freedom group I have never heard of was the sponsor of the attempt to put religious bigotry over the best interest of the child. I do agree that your question is quite interesting, though.

  7. #7 khan
    December 1, 2006

    Then somewhere along the line she was “born again” and decided that being a lesbian was a sin and that Janet could no longer be a parent to their child and filed in Virginia claiming she’s not a parent at all.

    Being “born again” seems to destroy a lot of families.

  8. #8 Parson Jim
    December 29, 2006

    Family Court seems to destroy a lot of families, too….

The site is currently under maintenance and will be back shortly. New comments have been disabled during this time, please check back soon.