Virginia Custody Ruling Appealed

December 8, 2004

RICHMOND, VA — In a case that has attracted national attention because it highlights the starkly different treatment lesbian and gay parents experience across state lines, Lambda Legal, the ACLU of Virginia and Equality Virginia today appealed a case in Virginia on behalf of a woman who is being denied visitation with her child despite a clear court order from Vermont.

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. (story) 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.

Last month 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 was 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.

The conflicting court orders led to today's appeal, which asks a state court to overturn the Virginia ruling.

The appeal cites the federal Parental Kidnapping Prevention Act and Virginia's Uniform Child Custody Jurisdiction and Enforcement Act. In this case, both laws make it clear that the Vermont court alone has jurisdiction in the matter and cannot be interfered with — and the federal kidnapping law requires that the Vermont order be enforced in Virginia, Lambda Legal says.

The lower court in Virginia was way off base to a ignore well thought-out and effective federal law designed to prevent this kind of jurisdiction-shopping by parents who are unhappy with their custody arrangements, said Lambda lawyer Greg Nevins.

The marriage law Lisa's attorneys are using doesn't apply here - federal law governing custody arrangements trumps it all. The Vermont court had already begun considering this case and it alone has jurisdiction over it. Period.

My daughter has a right to have access to both of the parents she was born to. I'm in this for her — she is all that matters, said Janet Miller-Jenkins.