NYS high court curbs non-bio moms’ rights

New York State’s highest court ruled this week that a non-biological mother has the right to seek custody and visitation of the child she and her ex-civil union partner planned for and created together. But the decision falls short of what many LGBT civil rights activists had hoped for.

Susan Sommer

New York State’s highest court ruled this week that a non-biological mother has the right to seek custody and visitation of the child she and her ex-civil union partner planned for and created together. But the decision falls short of what many LGBT civil rights activists had hoped for because the court indicated it still would not recognize a gay parent’s relationship to their child unless they were the biological parent, in a legally recognized relationship with the child’s biological parent, or had secured a second-parent adoption.

Identified in the opinion only by their first names and last initials, New York residents Debra H. and Janice R. conceived a child together using medical insemination. One month before the child was born, in 2003, the women obtained a civil union license in Vermont.

After the boy’s birth, Debra, the non-biological parent, wanted to do a second-parent adoption to establish a legal relationship with the child. That is permitted under New York law. But Janice R. repeatedly denied her requests to do so. The women separated in 2006, but Debra remained active in raising the boy. Then, in 2008, Janice cut off all contact between Debra and the child, and Debra went to court seeking joint custody.

Two lower courts disagreed: one found for and one against Debra. But on May 4, the New York State Court of Appeals, the state’s highest court, said Debra is a legal parent of the child—but only because she is recognized as such under Vermont law, based on her civil union.

The court noted that New York, like other states, must recognize a legal parental status granted in another state, just as it does parentage created by an adoption in a foreign country.

The ruling enables Debra H. to go back to a lower court and ask it to consider her request for custody and visitation, based on the boy’s best interests.

Legal activists applauded the decision for finding that the civil union created a parental relationship between the non-biological parent and the child that was recognized in New York. But they were disappointed the court said it would not recognize the non-biological parent’s relationship with the child had the women not been able to obtain a civil union or marriage license.

The high court explicitly reaffirmed its 1991 Alison D. v. Virginia M. decision that allows only biological or adoptive parents to seek custody and visitation.

Susan Sommer, Director of Constitutional Litigation at Lambda Legal Defense and Education Fund, who argued Debra’s case, said in an interview that the new ruling “doesn’t go far enough” to recognize non-biological parents.

Sommer noted that de facto parents are recognized in a number of other states, and many amicus briefs filed in the case asked the New York court to adopt similar standards.

Courts in California and Kentucky have ruled that a person is a parent if he or she has acted as one with the consent of the biological parent. The Delaware legislature passed a bill in August 2009 stating much the same.

And an Oregon court ruled in 2009 that someone who has consented to a partner’s insemination is a parent. Washington, D.C. and New Mexico each enacted legislation in the past year to the same end.

Maryland’s highest court ruled in 2008, however, that it would not recognize a de facto parent, and the state legislature in April 2010 failed to pass a bill that would have done so.

Nancy Polikoff, professor of law at American University and an expert on LGBT family law, agreed with Sommer.

“The opinion creates two classes of children of same-sex couples: legitimate and illegitimate children,” said Polikoff. “It erases 40 years of family law doctrine that says children shouldn’t suffer based on the marital status of their parent.”

Polikoff and Sommer also agreed that the next step is up to the state legislature. The Empire State Pride Agenda, in a press release after the ruling, likewise called on the legislature to act. And the ruling itself asserted, “Any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent.”

Legislation has already been introduced, by Assemblywoman Amy Paulin and six colleagues, in January 2009. It seeks to define a de facto parent as someone who has a relationship with a child with the consent of the legal parent, performs parental functions “to a significant degree,” and lives with and forms a bond with the child. The bill was referred to the Judiciary Committee in January 2010.

Paulin said in an interview that she has been working behind the scenes with Pride Agenda, Lambda Legal, and other groups on the bill and had been waiting for the results of the Court of Appeals ruling. They will now be “forging ahead” to get the bill passed.

The New York Court of Appeals also ruled May 4 on a related case, H.M. v E.T. The couple there had also created a child through medical insemination, but the non-biological mother now says she is not the child’s parent and should not be responsible for child support. The court said the Family Court had jurisdiction to determine if the non-biological mother is, in fact, the parent and obligated to support.

Although the New York court was unanimous in recognizing Debra H.’s parentage, two judges wrote separate opinions, concurring with the result but stating that Alison D. should be struck down. Judge Carmen Ciparick called it “outmoded and unworkable,” setting biology above a child’s best interests.

And Judge Robert S. Smith wrote regarding both of the May 4 cases, noting, “Each of these couples made a commitment to bring a child into a two-parent family, and it is unfair to the children to let the commitment go unenforced.”

DC marriage law in effect but trouble could lie ahead

A new law takes effect today in the nation’s capital, granting equal rights in marriage licensing for gay couples. Washington, D.C.’s marriage equality legislation becomes law in spite of a Herculean effort by opponents to block its implementation.

Aisha C. Mills and Danielle A. Moodie (Photo courtesy of Campaign for All DC Families)
Aisha C. Mills and Danielle A. Moodie (Photo courtesy of Campaign for All DC Families)

A new law takes effect today in the nation’s capital, granting equal rights in marriage licensing for gay couples.

Washington, D.C.’s marriage equality legislation becomes law in spite of a Herculean effort by opponents to block its implementation through both legal action—including a last minute Hail Mary pass to the U. S. Supreme Court and Chief Justice John Roberts for a stay—as well as legislative maneuvering in the House and Senate.

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop the District of Columbia’s new law from going into effect Wednesday, March 3. Marriage opponent Harry Jackson and others had petitioned the high court to intervene to stop the “Religious Freedom and Civil Marriage Equality Amendment Act” from taking effect until voters could address the issue through referendum.

While Roberts said he thinks the argument Jackson’s group makes “has some force,” he said the high court typically defers to the local courts concerning “matters of exclusively local concern.” He also noted that Congress, which has the power to review D.C. laws for 30 days before they take effect, took no action against the measure. And he pointed out that Jackson’s group still has the option to seek a ballot measure through an initiative process, rather than a referendum.

At 8:30 Wednesday morning, hundreds of same-sex couple began applying for licenses inside the Moultrie Courthouse where the D. C. marriage bureau is located, just blocks away from the U. S. Capitol.

No weddings will take place today, however, because of a mandatory three-day waiting period required of all couples marrying in the District. Accordingly, the first day couples can marry is Tuesday, March 9.

Even with a three-day wait, one couple in line for a marriage license—Aisha C. Mills and Danielle A. Moodie—could hardly contain their joy.

It feels “absolutely wonderful,” Mills said during a telephone interview. “We’ve had a committed, long-term relationship for six years now; and we knew we wanted to live our lives together.”

Why marriage?

“When you tell people you are married, there’s no explanation needed,” said Moodie. “When I say this is Aisha, my wife, people get right away. With domestic partnerships, you have to explain what that means.”

Additionally, getting married “is for us a safeguard as we make a family,” said Mills.

As early as 5 a. m., couples were lining up, Moodie said, speaking from her cell phone, with couples there “from every ward in the city.”

Mills and Moodie were number 11 in line.

Enacted by the City Council on Dec. 16, 2009, Religious Freedom and Civil Marriage Equality Amendment Act could not become law until after a 30-day congressional review period, a provision of the District’s home rule charter, a requirement for all but a few of city council’s legislative actions.

It was not assured a smooth sailing on Capitol Hill. Two measures were introduced in House of Representatives and another in the Senate to forestall full equality in marriage.

One bill introduced in the House of Representatives on January 31, 2010, sought to put “the marriage question to a referendum vote in the District of Columbia,” explained Sarah Warbelow, state legislative director for the Human Rights Campaign (HRC). But with only two sponsors, the bill “got nowhere,” she said.

An earlier House attempt, introduced on May 21, 2009, defined “for all legal purposes ‘marriage’ as the union of one man and one woman.” Even with nearly three dozen co-sponsors that bill also failed to gather momentum.

And yet another bill introduced in the Senate on Feb. 2, 2010, which had nine co-sponsors, sought to prevent the District of Columbia from issuing marriage licenses to same-sex couples until after a local referendum or initiative were held on the marriage question.

The Congressional attempts to override District marriage law failed for a number of reasons, said Brian Moulton, HRC’s legislative counsel—the biggest being that Democrats control both houses of Congress.

“Certainly there’s not much appetite among Democrats, even those opposed to marriage equality, to interfere with the affairs of D. C.,” said Moulton.

Mouton said he also thinks people “saw it as a bit of irony, wanting to put marriage up for a vote by the people of the District when the same [House] members oppose granting a voting member for the District in their own chamber.”

Moulton said he doesn’t think the law is “out of the woods” yet, noting that Congress has broad powers to meddle in D.C. government affairs. One possible scenario is marriage equality opponents attaching a rider to the D.C. appropriations bill to cut off any city spending related to issuance of marriage licenses to same-sex couples.

Opponents have waged a vigorous campaign to stop the bill for months. Last September, Harry Jackson and a coalition of religious and social conservatives petitioned the District’s Board of Elections and Ethics (BOEE) to allow an initiative to define marriage as “only the union of a man and woman is valid or recognized in the District of Columbia.” The Board ruled that initiative was not permitted under the city’s Human Rights Act (HRA) because it would authorize discrimination prohibited under the act.

In November, Bishop Jackson’s group sued in D. C. Superior Court, challenging the elections and ethics board decision. The petitioners claimed that the initiative does not violate the HRA and argued that subject limitation on initiatives violating the HRC is invalid in and of itself because such limitations violate the District’s charter.

The D.C. Superior Court upheld the Board’s ruling, Jackson’s coalition appealed to the D. C. Court of Appeals. Oral arguments are set for May 2010.

Meanwhile, implementation of the new marriage equality law makes Washington, D. C, the sixth jurisdiction—along with Connecticut, Iowa, Massachusetts, New Hampshire, Vermont—to issue licenses to same-sex couples. The District is also the first location for marriage equality below the Mason-Dixon line.

Even before the law took effect, marriage equality supporters began to celebrate, joining D. C. Delegate to Congress Eleanor Holmes Norton for a reception marking the end of the 30-day congressional review period, held at the Rayburn House Office Building, with music provided by the Gay Men’s Chorus.

“It’s a great day for the city,” Holmes Norton said, yesterday afternoon during a telephone press conference. This evening, “We’re gonna sing it from the hilltops.”

Full faith and credit helps gay parents overcome ban

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

Ken Upton
Ken Upton

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

The U.S. Supreme Court on Monday, February 22, declined to review the appeal of a lesbian mother, identified as Kristina S. in Texas, who sought to prevent her former domestic partner, Charisma R. in California, from continuing her parental relationship with a child they had together. By not hearing the case, the high court simply left intact decisions by the courts of California that upheld the non-biological mother’s rights. But the California court ruling held that the non-biological mother’s parental status was established by the fact that she helped prepare for the child’s birth through insemination, “held herself out” as the child’s mother publicly, and helped care for the child after it was born.

Gay family law expert Nancy Polikoff described the California Court of Appeals decision last year as “the clearest and most comprehensive analysis of why U.S. Supreme Court cases on parental rights do not foreclose Charisma’s parentage and actually protect a person designated as a parent under state law, as Charisma was in this case.” While the decision of the Supreme Court not to take the case has no important legal value, she said, “it can’t help but add the tiniest bit of ‘oomph’ to” similar conflicts in other states.

Kristina S. v. Charisma R. was appealed by the biological mother’s attorneys from the right-wing Liberty Counsel. The Liberty Counsel has also been representing former lesbian Lisa Miller against her former civil union partner Janet Jenkins in a highly publicized custody battle between Vermont and Virginia. The Liberty Counsel tried unsuccessfully to appeal Miller’s case to the U.S. Supreme Court also—and was also denied review in that case. The Miller-Jenkins custody battle continues, with Miller having disappeared with the daughter in order to avoid a Vermont court order that she transfer custody to Jenkins. A Virginia court of appeals on February 23 rejected her third lawsuit to have the Vermont custody orders nullified.

Meanwhile, the Liberty Counsel filed a friend-of-the-court brief in another important case this month.

On February 18, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit –which covers Texas, Louisiana, and Mississippi– upheld the right of a gay couple from California to obtain an amended birth certificate for a Louisiana-born child they adopted in New York State five years ago. The state of Louisiana had refused to issue the routine amended birth certificate, claiming that to do so would be tantamount to allowing adoptions by unmarried couples, which is barred by state law there.

Ken Upton, Supervising Senior Staff Attorney for Lambda Legal Defense and Education Fund, which represented the gay couple, said the court simply ruled the way courts have ruled on similar matters in “tons of cases over the last century.”

“But it was a landmark in Louisiana,” he said, “because [the state] tried to argue that they should have some special exemption from the [U.S. Constitution’s] ‘full faith and credit’ clause because it violates a policy they would like to enact to restrict the rights of gays and lesbians.”

The U.S. Constitution’s “full faith and credit” clause states, “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

In this instance, said the judges, Louisiana owed full faith and credit to a judicial proceeding from New York, which granted the gay couple the adoption. The panel made clear that it was applying the full faith and credit requirements to court judicial proceedings in this case, not to New York state laws concerning adoption.

The judges—which included two Republican appointees—was unusually harsh in its characterization of Louisiana’s defense of its actions, saying the state’s argument was a “shallow, circular attempt” to conflate a judgment and a statute as the same thing.

“Whether the New York adoption contravenes Louisiana’s ‘public policy’ [of barring adoptions by unmarried couples] is simply irrelevant and immaterial,” said the panel. The “plain language of Louisiana’s own statute requires that a new, corrected birth certificate be issued to Louisiana-born adopted minors and their adoptive parents…,” wrote the panel, and “that requirement must be applied in an ‘evenhanded’ manner.”

The case, Oren Adar v. Darlene Smith, involved a gay male couple – Oren Adar and Mickey Ray Smith— who sought an amended birth certificate for a boy born in Louisiana in 2005. They jointly adopted the child in the state of New York that same year. Darlene Smith is the Louisiana state registrar and director of vital records, who was represented by the state attorney general’s office.

The gay couple applied in Louisiana for the birth certificate listing each of them as a parent of the child and indicating the child’s new legal name. But Darlene Smith refused to issue the certificate, saying state law prohibited unmarried couples from adopting children.

Polikoff agreed with Lambda’s Upton that the 5th Circuit decision “restates what the U.S. Supreme Court has said continuously, that there is no ‘public policy’ exception to the Full Faith and Credit Clause.”

“Judgments from a state court are different from a state’s statutes,” explained Polikoff, in her beyondstraightandgaymarriage.com blog. “Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union [in another state], for example, Louisiana might not have been required to recognize their dual parentage. It’s a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.”

Liberty Counsel founder Mathew Staver has said cases such as this, although they involve adoption, provide a “back door” entrance to marriage equality.

“It’s not generally a direct, head-on, frontal assault with regards to same-sex marriage,” he said in a statement about the Adar case last year when the Republican appointed district court judge ruled for the gay couple. “But the fact is, if a sister state is required to recognize same-sex adoption, even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

In its opinion, the 5th Circuit panel noted that only one other federal appeals court has dealt with a similar case. The 10th Circuit, it noted, ruled the state of Oklahoma’s law barring same-sex couples from adopting children from other jurisdictions had violated the full faith and credit clause.

Lambda’s Upton said he has heard Louisiana will appeal the decision, either to the full 5th Circuit bench or to the U.S. Supreme Court.

But for now, he said, “we’re pleased the court agrees that it’s wrong to punish children just because the Registrar doesn’t like their parents.”

Vermont judge: Fugitive mother in contempt

A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins.

Undated photo of Isabella Miller-Jenkins
Undated photo of Isabella Miller-Jenkins

A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins.

Judge William Cohen, a judge in Rutland County, Vermont, ruled February 23 that Miller was in contempt of the Vermont court for failing to turn over custody of the daughter to Jenkins on January 1, as ordered.

According to one of Jenkins’ lawyers, Sarah Star, the judge’s order is essentially an arrest warrant for a misdemeanor. Jenkins must now hope that the state’s attorney in Rutland will seek to file felony criminal charges against Miller. If he does, law enforcement officials in all 50 states, she says, will be empowered to arrest Miller and hold her on $50,000 bond.

Just last week, Judge Louis Harrison, a family court judge in Bedford, Virginia, said he could not issue an arrest warrant for Miller because he could not be sure Miller was aware of the Vermont judge’s order. Miller’s attorney, Mathew Staver, founder and chairman of the right-wing Liberty Counsel litigation group, has told reporters he does not know where Miller is.

The Miller-Jenkins custody battle has gotten enormous publicity during the past several years, including an appeal to the U.S. Supreme Court in 2008. The Supreme Court refused to hear Miller’s appeal of a Virginia Supreme Court ruling that said Miller must comply with the order from a Vermont family court. That court, at the time, had allowed Jenkins visitation rights with her daughter. But Miller’s attorneys continued to file additional litigation seeking to overcome the court orders, and Miller refused to allow Jenkins to visit their daughter. That refusal prompted the Vermont court to order Miller to transfer custody of the daughter to Jenkins. It set January 1, 2010, as the date Miller should make the transfer. But instead of complying, Miller disappeared with her daughter.

Star said Jenkins last saw her daughter, who will turn eight in April, in January 2009.

In addition to the contempt hearing, the Virginia court also held some confidential proceedings in the county juvenile court last week, and some participants in that hearing have revealed some aspects of those proceedings outside court.

In addition to Star, Jenkins is being represented in the various legal proceedings by the Lambda Legal Defense and Education Fund, the ACLU of Virginia, and Gay & Lesbian Advocates & Defenders.

The Miller-Jenkins girl is one of 142 children who have been reported as missing in Virginia during the last two years alone—85 of them girls—according to the National Center for Missing and Exploited Children.

Miller has contended that she denied court orders because her daughter had threatened suicide and began exhibiting “strange” behavior after her visits with Jenkins.

In a 2008 interview, Miller also revealed that she herself had tried to commit suicide at one time. During a state hospital stay to address that suicide attempt, Miller said, hospital personnel told her they thought she was a lesbian. She said she soon thereafter pursued a lesbian relationship “trying to recreate a mother/daughter bond that I never had.” Miller said her initial lesbian relationship failed and she sought counseling at the Whitman-Walker Clinic, a gay community health clinic in the Washington, D.C. area. She said she eventually met Jenkins at a group counseling meeting and moved in with her about six months later, in 1998.

The full interview can be read at www.lifesitenews.com/ldn/2008/oct/08102707.html

Olson firm has history of supporting gay marriage

It turns out that it shouldn’t have been a big surprise last year when conservative icon Ted Olson announced he would help lead the charge against Proposition 8, the initiative which bans legal recognition for same-sex relationships in California. Olson’s law firm is no novice at defending the rights of gays to get married.

Enrique Monagas
Enrique Monagas

It turns out that it shouldn’t have been a big surprise last year when conservative icon Ted Olson announced he would help lead the charge against Proposition 8, the initiative which bans legal recognition for same-sex relationships in California.

Olson’s law firm—Gibson, Dunn & Crutcher—is no novice at defending the rights of gays to get married. In fact, the firm, of which Olson is a partner, has defended the rights of same-sex couples to marry in three other high-profile gay marriage cases. On its website, this large, corporate firm’s managing partner, Kenneth Doran, emphasizes that the company “truly embraces diversity,” and the website includes a video of two of the firm’s openly gay partners—Jeff Webb and David Rosenauer—talking about the high level of comfort they have felt with being openly gay at the firm.

Webb and Rosenauer note, during the video, that the firm has both conservative and liberal attorneys, and a number of openly gay attorneys.

Two of those openly gay attorneys who are working on the Perry v. Schwarzenegger case are Enrique Monagas and Sarah Piepmeier of San Francisco.

Sarah Piepmeier
Sarah Piepmeier

Piepmeier, who joined Gibson, Dunn in 2003, helped the firm prepare a friend-of-the-court (or “amicus”) brief on behalf of a group of businesses who supported the city of San Francisco’s first lawsuit, In Re Marriages, to defend the right of same-sex couples to marry. It was the California Supreme Court’s decision in that case, in 2008, which first recognized that the state constitution’s guarantee of equal protection meant same-sex couples should be treated the same as straight couples in marriage licensing. (And it was that decision which prompted opponents of equal rights for gays to launch their Proposition 8 initiative drive.)

Both Piepmeier and Monagas were involved in Gibson, Dunn’s work on a second same-sex marriage case, Strauss v. Horton, which challenged the constitutionality of Proposition 8 as more than just an amendment to the state constitution—as a revision of the constitution. Piepmeier and Monagas helped write an amicus brief for more than 60 state legislators who opposed Proposition 8.

And Gibson, Dunn also submitted an amicus brief for pro-gay marriage scholars in one of the first gay marriage cases, Baehr v. Hawaii, in 1997, when it was appealed to the state supreme court.

Both Monagas and Piepmeier are in their mid-thirties, both are married to same-sex spouses, and—by coincidence—both share the same anniversary date of October 22, 2008.

Monagas said he and his spouse chose October 22 because it is their daughter’s birthday. For Piepmeier, it’s a little more complicated. She was working on a case out of town for the entire time during which gay couples could legally obtain a marriage license in California. When she expressed her dilemma to one of the firm’s partners in Washington, D.C., where she working on a case at that time, the partner insisted Piepmeier fly home and get married before it was too late. And she did.

Monagas was born in Puerto Rico to an Air Force family who then lived in Arizona and Spain. He attended the University of California-Berkeley and its law school, serving as editor of the Berkeley Journal of Gender, Law & Justice. He spent four years in New York City, but most of his life has been spent in Riverside, California.

Piepmeier was born in London, spent her early years in Washington, D.C., attended Wellesley College and New York University Law School, and lived in Boston and Chicago before moving to San Francisco in 2003.

Piepmeier and Monagas say they are not the only gay people working on the Perry v. Schwarzenegger case at Gibson, Dunn. There are other attorneys and staff.

“There have definitely been times when being gay has had an added value,” said Monagas. “We have a knowledge of all the gay history, of gay litigation, the prior gay marriage cases—Sarah and I know them all. It’s our community.”

One of the things Monagas knew about the community was that it had a strategy of trying to secure equal marriage rights on a state-by-state basis. For that reason, he said, he was initially skeptical about the idea of the federal lawsuit to challenge Proposition 8. But the firm convinced him of the case’s merits.

“And when I found out that Ted Olson was going to put on the case with David Boies,” said Monagas, “I was sold.”

As Piepmeier puts it: “There’s really a warmth and sincerity and personal interest about Ted Olson [in the case] that sets the tone.”

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.

va-vtIn 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.”