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Court Says Both in Gay Union Are Parents

By Jonathan Finer
Washington Post Staff Writer
Monday, November 22, 2004; Page A03

A Vermont family court has ruled that both parties in a same-sex civil union are legal parents of a child, a contradiction of an earlier Virginia court ruling that awarded custody to the biological parent.

The cases center on Lisa and Janet Miller-Jenkins, who were joined in a civil union in the Green Mountain State in 2000 and split up last year. They are now embroiled in a contentious custody dispute over Isabella, 2, to whom Lisa Miller-Jenkins gave birth in Virginia after being artificially inseminated.

Janet Miller-Jenkins is her former partner in a Vermont civil union. (File Photo)

In August, Frederick County Judge John R. Prosser ruled that Lisa Miller-Jenkins is Isabella's "sole parent," citing a Virginia law that prohibits recognition of same-sex unions.

But in a Nov. 17 ruling, Rutland Family Court Judge William D. Cohen in Vermont wrote that "parties to a civil union who use artificial insemination to conceive a child can be treated no differently than a husband and wife, who, unable to conceive a child biologically, choose to conceive a child by inseminating the wife with the sperm of an anonymous donor."

The ruling was first reported by the Rutland Herald yesterday.

The case has few legal precedents and is being closely watched by activists on both sides of the same-sex marriage issue. Cohen's ruling, which is likely to be appealed, immediately raised questions of how the burgeoning standoff between the two state's courts would be reconciled.

The child is living with Lisa Miller-Jenkins, 35, in Winchester, Va., while Janet Miller-Jenkins, 39, resides in Fair Haven, Vt.

In most custody disputes, the Uniform Child Custody Jurisdiction Act helps states resolve jurisdictional issues. But it is unclear how that law applies to cases involving same-sex relationships that have legal standing in some states but not in others.

Vermont's civil union law, which grants same-sex couples all of the rights of marriage under state law, took effect in 2000. No other state recognizes those relationships, though a Massachusetts court legalized same-sex marriage last November.

"The fact is, in this case there may be no enforcement mechanism for the Vermont court because the Virginia courts, the legislature and the governor of Virginia don't recognize the validity of the Vermont union," said Michael Mello, a professor at Vermont Law School and the author of a recent book on same-sex marriage.

"It's going to be a case like this, and possibly this case, that's going to get the gay marriage issue before the Supreme Court. That's really the only place to go when there is this kind of direct collision between two state courts, and it's hard to imagine a more direct confrontation," Mello said.

Janet Miller-Jenkins's lawyer, Theodore A. Parisi Jr., said that his client was "pleased that her view of the law was vindicated."

But Parisi acknowledged that there was "no guarantee that the order will be enforced because of the novel question it presents."

Lisa Miller-Jenkins's attorney, Judy Barone, did not return a telephone call seeking comment.

For now the matter will play out in a series of appeals. Janet Miller-Jenkins has appealed the Virginia ruling granting custody to Lisa Miller-Jenkins on the grounds that the court lacked jurisdiction. Lisa Miller-Jenkins has appealed a September order by Cohen that found her in contempt for failing to allow Janet Miller-Jenkins to visit Isabella while custody was being determined.

Parisi said that a separate process to dissolve the Vermont civil union is awaiting a final hearing and a ruling that will determine issues such as custody and visitation of Isabella and the division of the couple's assets.

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