Custody Battle Pits Vermont Against Virginia

November 22, 2004

A nasty co-parenting battle being fought out in two states between an estranged lesbian couple is expected to wind up in the US Supreme Court and could include the issue of whether states which do not recognize same-sex relationships must honor civil unions from those which do.

The case revolves around a two year old girl born through artificial insemination to Lisa Miller-Jenkins. At the time she was in a relationship with Janet Miller-Jenkins which had been formalized by a civil union in Vermont where they resided.

When the relationship between the two women soured and they split up, a judge in Vermont gave Janet Miller-Jenkins temporary visitation rights with the child.

Lisa Miller-Jenkins fled with her daughter to Virginia which has some of the most anti-gay legislation in the country. She then went to court in that state seeking sole custody of the child.

Janet Miller-Jenkins fought the application on the grounds that the case was already before the court in Vermont. But, Judge John R. Prosser ruled that since the mother resided in Virginia, a Virginia court would hear the case. Subsequently Prosser ruled that Lisa Miller-Jenkins was the sole parent and that Janet Miller-Jenkins is nothing more a friend to the child.

A Family Court judge in Rutland, Vermont then found Lisa Miller-Jenkins in contempt for moving to Virginia and disobeying a court order involving the child's custody.

Now, Vermont Judge William Cohen has ruled that under the state's civil unions law, Janet Miller-Jenkins must be regarded as a co-parent.

It is the first time that a Vermont judge has ruled for co-parenting using the civil unions law, but the ruling pits the state against Virginia. Both judges ruled correctly according to the laws of their respective states, said Michael Mello, a professor at Vermont Law School.

It's this kind of jurisdictional collision that's going to get this issue before the U.S. Supreme Court, Mello said.

Under the full faith and credit clause of the US Constitution states must accept each others' laws. Some legal scholars say the case also could bring into question federal DOMA.