Same-Sex Parents Battle On Two-Court Front

While much of the rest of the country focuses on gay marriage, courts in Vermont and Virginia are battlegrounds over what happens when a legalized same-sex relationship breaks up.

At issue is whether Virginia, which does not recognize civil unions or gay marriage, can ignore court decisions from Vermont, which has authorized civil unions.

The Vermont Psychiatric Association (VPA), along with the Vermont chapter of the National Association of Social Workers and four individuals, has filed an amicus curiae brief with the Vermont Supreme Court supporting the parental rights of a nonbiological parent when a civil union is dissolved.

In the brief, the amici said that they are “committed to providing courts accurate and up-to-date information from credible scholarly research regarding gay and lesbian individuals, relationships, and parenting.”

The case began in Vermont but was complicated when a judge in Virginia, where one of the women in the relationship now lives, said that state's Affirmation of Marriage Act overrides existing state and federal child custody laws. That law prohibits the passage of any statute that would allow same-sex marriage in the state.

“Our primary consideration in this case is the welfare of the child,” said VPA President Francis Kalibat, M.D. “Our view stands on research recognizing that the bonds between child and parent occur equally whether or not there is a legal connection.”

“[A] nonbiological parent typically establishes a genuine parental bond with the child that merits legal protection,” states the brief.

The case also represents a civil rights issue, said Kalibat, who is in private practice in Johnson, Vt. The organization filed statements in support of the civil-union statute when it was first considered by the legislature.“ This case is simply a logical continuation of our position and commitment,” he said.

The facts of the case might sound like an ordinary divorce proceeding if it did not involve a same-sex civil union, now permitted by Vermont law. The two parties in the case, Janet Miller-Jenkins and Lisa Miller-Jenkins, lived together in Hamilton, Va., from 1998 to 2002. In December 2000, they went to Vermont and entered into a civil union. They returned to Virginia, where Lisa Miller-Jenkins conceived a child by artificial insemination. The child, a girl, was born in April 2002. The family moved to Vermont in July of that year in search of a more congenial setting for their family.

In September 2003 the couple split up, and Lisa moved to Virginia with their daughter. In November 2003 Lisa returned to Vermont and petitioned the Vermont Family Court to dissolve the civil union and order Janet to pay child support. In June 2004 the Vermont court awarded Janet visitation rights to the child in Vermont and Virginia.

In September the Vermont court ruled that Lisa was in contempt for blocking Janet's visits and phone calls to the child, and in November 2004 it declared that Janet was a legal parent of the child.

However, on July 1, 2004, when the Affirmation of Marriage Act became law in Virginia, Lisa filed suit there claiming to be the sole legal parent. Judge John Prosser ruled that his court could assume jurisdiction in the case, despite federal and Virginia laws on the books for decades intended to prevent plaintiffs from shopping around to find friendly courts. Prosser did not refer to those laws when announcing his decision from the bench, said Joseph Price, an attorney with the Washington, D.C., firm of Arent Fox, who is representing Janet Miller-Jenkins pro bono.

The federal Parental Kidnapping Prevention Act states that once a proceeding affecting child custody is under way in one state, no other state's courts can intercede, said Price. That would give precedence to the actions in the Vermont court, he said. A three-judge panel of the Virginia Court of Appeals will hear arguments in the Miller-Jenkins case in Alexandria on September 13 to decide whether the trial judge was entitled to rule as he did.

Meanwhile, Lisa's attorneys filed an appeal of the family court ruling with the Vermont Supreme Court. The court has not indicated when it will hear oral arguments in the case.

The appeal to the Vermont Supreme Court is posted at<www.glad.org/GLAD_Cases/Miller-JenkinsVTSupremeCtBrief.pdf>. The amicus brief is posted at<www.glad.org/GLAD_Cases/Miller-JenkinsAmicusBriefVTPsychAssn.pdf>.▪