Court Treads New Ground In Child-Custody Fight

One year ago, Psychiatric News reported on a most contemporary child custody case, pitting two halves of a fractured lesbian civil union—and two states—against each other. Now the Vermont Supreme Court has ruled that Vermont and not Virginia holds exclusive jurisdiction in the case.

The custodial and biological mother, Lisa Miller-Jenkins, now lives in Virginia, while her former partner, Janet Miller-Jenkins, lives in Vermont, where civil unions are legal. They joined there in a civil union in 2000, and Lisa filed in Vermont to dissolve the union in November 2003. Vermont recognizes the parental rights of Janet Miller-Jenkins to the child, Isabella, now 4 years old, and its Supreme Court has ruled in favor of her right to see the girl. It also reaffirmed a Vermont Family Court contempt order against Lisa Miller-Jenkins for failing to comply with its visitation order. The Vermont Psychiatric Association filed an amicus brief in the case, supporting Janet Miller-Jenkins's right to parental visitation.

Action in the case is expected to move to a three-judge panel of the Virginia Court of Appeals, which stayed an earlier ruling in the case pending the Vermont court's ruling. If Lisa Miller-Jenkins files an appeal, which is highly likely, the Virginia court will have to uphold or reject a lower court's decision that Virginia's Marriage Affirmation Act supersedes Vermont law. Lisa Miller-Jenkins's attorneys also cited the federal Defense of Marriage Act on their client's behalf.

Were this a case of battling heterosexual parents, there would be little to argue about, said Cheryl Lynn Hepfer, J.D., of Rockville, Md., president of the American Academy of Matrimonial Lawyers. Federal laws in place for two decades say that the state where parties first file holds jurisdiction, she said.

“Anything else would be truly contrary to general law in custody cases,” she said. “Today lawyers advise parents not to take the child to another state in the hopes of finding a more favorable court. The consequence is substantial and not in the best interests of the child.”

A reversal of such general law would have the effect of overturning standards for all custody proceedings, not just those involving same-sex couples, said Hepfer.

Janet Miller-Jenkins's legal argument would appear to also have the backing of other legal precedents, said attorney Joseph Price, J.D., her pro bono Virginia lawyer. “The rule is to apply the most specific and most recent legislation, and since the Parental Kidnapping Protection Act was amended more recently than the federal Defense of Marriage Act, I would expect a favorable outcome.”

However, with an appeal in Virginia by Lisa Miller-Jenkins likely, said Price, a final ruling may not come soon. Delays may have more than legal ramifications if Janet Miller-Jenkins cannot see her child for several years, he added. He cited another case in which so much time went by during appeals that the second parent was barred from seeing the child on the grounds that she was now a stranger.

Letting that happen, he said, “would amount to allowing Lisa to get away with kidnapping.”

The Vermont Supreme Court decision in Miller-Jenkins v. Miller-Jenkins [2006 VT 78, Nos. 2004-443 & 2005-030] is posted at<http://dol.state.vt.us/gopher_root3/supct/current/2004-443.op>.▪