Custody dispute escalates, but courts stay faithful to the law

In a long-running interstate dispute, an “ex-lesbian” in Virginia failed to show up last Friday to transfer custody of her seven-year-old daughter to the woman’s former civil union partner.

The former partner and the girl’s other mother, Janet Jenkins of Vermont, notified police in Fairfax, Virginia, that Lisa Miller did not appear at the designated transfer location in Virginia, as ordered by a family court in Rutland, Vermont.

Attorneys for Miller did not return this reporter’s call but have told other media that Miller has not been in touch with them for more than a month. Whereabouts of the seven-year-old are apparently unknown to anyone other than Miller, who has also disappeared.

The case underscores the conflicts in state laws that sometimes apply to same-sex parents.

Attorneys for Jenkins, the non-biological mother, filed an emergency motion against Miller in Vermont for contempt of court and for a warrant ordering law enforcement to find Miller. Jenkins’ attorneys are also seeking an expedited enforcement order in Virginia and Jenkins filed a missing persons report in Virginia last week. These new orders would reinforce the urgency that the police find Lisa. Miller has been repeatedly held in contempt in the dispute in both states, for failing to enable court-ordered visitation of the child by Jenkins.

After warning Miller last January that blocking visitation could jeopardize her custody of her daughter, Judge William Cohen of the Rutland Family Court transferred sole custody of the daughter to Jenkins in November. Cohen indicated that he believed giving Jenkins custody would be the only way the girl would continue to have contact with both parents.

Cohen’s ruling came after years of court battles. The couple had a civil union in Vermont in 2000, and Miller gave birth to their daughter in 2002. The family lived in Vermont until the women’s relationship ended, whereupon Miller moved to Virginia with the child. Shortly afterwards, Miller began to identify as a born-again Christian and said she was no longer a lesbian. The conservative Christian legal group Liberty Counsel provides legal representation to Miller.

Initially, Miller asked the Rutland Family Court to dissolve the civil union and determine custody. The court granted Miller custody but ordered that Jenkins should have visitation rights. Miller tried to have a Virginia court rule that, because of its ban on legal recognition for same-sex couples, she was the child’s sole legal parent. A Virginia district court agreed with Miller, but after a series of appeals, both the Virginia Supreme Court and the Vermont Supreme Court upheld the Vermont family court’s ruling and Vermont’s jurisdiction in the case. Miller appealed the decisions to the U.S. Supreme Court, which refused to hear them.

There is still an appeal pending in Virginia, in which Liberty Counsel argues the state is not required to enforce the Vermont order affirming Jenkins’ parentage. To do so, it says, would violate Virginia public policy. The Juvenile and Domestic Relations District Court in Bedford, Virginia, however, issued an order Monday for the custody transfer to be enforced.

Jennifer Levi, senior attorney for Gay & Lesbian Advocates and Defenders (GLAD), which has been representing Jenkins for all appellate matters in Vermont, explained, “Neither the family court nor the local law enforcement are at all questioning the enforcement in Virginia of the Vermont court order [to transfer custody]. . . . They recognize their obligation to assist.”

Levi said she cannot speculate on what Miller might do next. If Miller tries to leave Virginia, however, Levi does not believe she would find a better reception elsewhere.

“I don’t think she has any legal protections available to her at this point,” she said. “It’s just her efforts to evade the law and the potential success of that for her.”

Greg Nevins, Senior Supervising Staff Attorney for Lambda Legal Defense and Education Fund, who also represents Jenkins, agreed.

“Courts have been down these roads a whole bunch of times with different-sex parents and they’ve wisely figured out that there’s not an exception that says, ‘Oh, child-snatching and forum shopping is a good thing if same-sex parents are involved.’ They recognize that the rules that were designed to protect children generally apply no matter who the parents are.”

LGBT family law expert Nancy Polikoff, professor of law at American University in Washington, D.C., notes that because the child must attend school, Miller may find it hard to hide with her for long.

“She would have to change her name and the child’s name, and she would have to break off contact with her other family members and friends. None of that would be in the child’s best interests.”

Polikoff notes that Virginia has shown it is willing to enforce other states’ proper custody orders, even though its own laws are hostile to same-sex couples. It did so not only for Miller-Jenkins but also in the November case of a woman trying to deny custody to the non-biological father in a gay male couple for whom she had been a surrogate. A North Carolina court had issued the custody order before the men moved to Virginia.

GLAD advises on its website that non-biological parents should still secure formal adoption of their children even in states where same-sex couples can marry or have civil unions, because other states might not honor parentage that is based on the adults’ relationship.

Liberty Counsel has, nevertheless, tried unsuccessfully to use variation in state laws to deny non-biological parents their rights even in the face of legal adoption. Last May, a Florida appeals court ruled against a Liberty Counsel client, a biological mother, saying that despite Florida’s ban on adoption by gay men and lesbians, the state must recognize the second-parent adoption done by the non-biological mother when the couple lived in Washington.

Conservative legal organizations such as Liberty Counsel and the Alliance Defense Fund (ADF) have also been involved in a number of single-state lesbian custody cases, each time backing the biological mother or sole legal adoptive mother against the mother who has no formal legal rights to the child. They had two successes in Utah, last year in a lower court and in 2007 in the Utah Supreme Court, but lost last year in a California appeals court and the Montana Supreme Court. In each case, as in Miller-Jenkins, the biological mother said she was no longer a lesbian or was now in an opposite-sex relationship.

“I think what stands out in this case,” said GLAD’s Levi about the Miller-Jenkins dispute, “is the lengths to which Lisa Miller will go to avoid the law. I think she has really put herself in a position of potentially having to go to jail in order to be made to comply with a court order.”

The legal matters may continue to be hashed out in court, but they have a very personal impact. Through GLAD and Lambda, Jenkins issued a statement Monday saying she was very worried about her daughter.

“I do not know where she is or whether she is okay. . . . My goal has never been to separate [our daughter] from Lisa. I just want [our child] to know and love both of her parents. I just want to be with her, like any parent.”

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