Vermont Supreme Court hears reappeal of lesbian custody case
MONTPELIER, Vt.—A Virginia woman asked the Vermont Supreme Court again Thursday to bar her former lesbian partner from visiting a 5-year-old girl born when the two were still together.
An attorney for Lisa Miller-Jenkins told a three-judge panel that the full court's 2006 decision in the same case was wrong because it was based on the assumption that a couple from Virginia could be bound by Vermont's civil union law.
David Corry, who represents Lisa Miller-Jenkins, of Winchester, Va., said that since Virginia law prohibits civil unions and same-sex marriage, her former partner, Janet Miller-Jenkins, has no legal standing as a parent.
"Couples in states where same-sex unions are prohibited need to know that Vermont has no power to facilitate the avoidance of laws in their domicile by creating a union in Vermont," said Corry, a lawyer with The Liberty Counsel.
Janet Miller-Jenkins' lawyer countered that the case has already been decided and that the ruling should stand.
"All of these issues have been resolved," said Jennifer Levi, a lawyer for Gay & Lesbian Advocates and Defenders who is representing Janet Miller-Jenkins.
The hearing was the latest legal chapter in a first-of-its-kind custody battle that has bounced between courts in Virginia and Vermont. Last year, the U.S. Supreme Court declined to get involved.
Neither woman -- nor Isabella, the girl they're fighting over -- was in court for the hearing.
The panel could decide as early as Friday.
Justice John Dooley seemed skeptical of the Miller-Jenkins case being back before the court. "Our first reaction is, isn't this just the same intellectual argument?" Dooley asked Corry, whose organization promotes what it calls traditional family values.
Attorneys say the custody battle between the two women could help set legal precedent at a time when the definition of family is changing in America.
But Cheryl Hanna, a professor of constitutional law at Vermont Law School, said she didn't think Miller-Jenkins would go that far.
"My sense is it's unlikely the (U.S.) Supreme Court will get involved in whether states have to recognize civil unions in a case involving child custody and visitation," Hanna said. "It makes it too messy."
The Virginia Supreme Court is scheduled to hear a related case next month in which it will decide if Virginia can be required to enforce Vermont's family court ruling in the Miller-Jenkins case, which is at odds with Virginia's constitution, Corry said.
"We're likely to have conflicting supreme court cases involving the same couple and child. The U.S. Supreme Court may have to decide," Corry said.
Lisa Miller-Jenkins and Janet Miller-Jenkins were Virginia residents in 2000, when they traveled to Vermont to take advantage of the state's first-in-the-nation civil union law. In April 2002, Lisa Miller-Jenkins gave birth to the girl, who was conceived through artificial insemination, and the three moved to Vermont.
About a year later, Lisa Miller-Jenkins renounced her homosexuality, returned to Virginia and denied Janet Miller-Jenkins' access to Isabella.
Janet Miller-Jenkins and her attorneys frame the case as a simple child custody matter.
"The courts have recognized that there is nothing unusual about this case," Levi said after the hearing.
Corry said it was whether a state that prohibits same sex unions can be forced to recognize such union from other states.
In its 2006 decision, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction. Later that year, the Virginia Court of Appeals agreed. The U.S. Supreme Court refused to hear the case.
Last summer, a family court in Rutland issued a final order in the case, giving Lisa Miller-Jenkins full custody but granting regular visitation to Janet Miller-Jenkins. The visits have been taking place as ordered.
"I think it's fair to say it's going on," said Levi, who said there were tensions between the two women over details.
Corry called the situation "sad."
"The child is a pawn, in some ways, between a battle that she didn't ask for," Corry said. "It's difficult for her to have these once-a-month visits with someone who is not just a legal stranger, as the attorneys would say, but she is a stranger in many ways."
