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Custody Case Puts Civil Union on Trial

States' Differing Laws Complicate Same-Sex Couple's Fight Over Child

By Jonathan Finer
Washington Post Staff Writer
Saturday, August 7, 2004; Page A03

FAIR HAVEN, Vt. -- It is a painfully familiar story with a modern twist: A young couple fall in love, exchange vows and become parents. They later decide to part, with the custody of the child left for a court to determine.

Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000, merged their last names, and two years later moved from Virginia to this small town in the western part of the state to begin a new life.

Janet Miller-Jenkins displays photos of Isabella, 2. She is seeking custody of the child from her estranged partner. (Jonathan Finer -- The Washington Post)

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Today they are embroiled in an acrimonious tug of war over a 2-year-old girl named Isabella, a case that legal experts say is the most significant custody battle to emerge since same-sex civil unions were established here four years ago and a test of the viability of marriage laws that vary from state to state.

With more than 7,000 gay couples having formed civil unions in Vermont since 2000 and thousands more married in Massachusetts since such unions became legal there in May, what happens to children when such relationships end is an unsettled legal question. Opponents have long argued that relationships sanctioned by some states and not others make for legal chaos and confusion.

"This is the first of what I imagine will be a long train of cases for gays and lesbians all over the United States testing the idea of whether legal rights they've won in certain states are going to be recognized in other jurisdictions," said Joseph R. Price, an attorney for Janet Miller-Jenkins and the chairman of Equality Virginia, a gay rights advocacy group.

Lisa Miller-Jenkins, 35, who gave birth to Isabella in Frederick County, Va., in 2002 after becoming pregnant by artificial insemination, is suing for full custody in Virginia, which does not recognize civil unions. Janet Miller-Jenkins, 39, is asking a family court in Vermont, the only state where civil unions are recognized, to award her custody of the child, claiming that Lisa has barred her from seeing Isabella even though under Vermont law she is a co-equal parent.

Peter Hansen, one of Lisa Miller-Jenkins's attorneys, said neither he nor his client will discuss the case before it is decided. "As far as we're concerned it's just a simple custody matter, and that is how we're proceeding," Hansen said.

The dispute has mobilized activists on both sides of the gay-marriage issue. Lambda Legal, a prominent gay rights advocacy group in New York, is advising Janet, while Florida-based Liberty Counsel, which opposes gay marriage, is consulting with Lisa.

"This is a shining example of the problems we knew would arise if these things became legal, but couldn't reference specifically before," said Stephen Cable, president of Vermont Renewal, an organization formed amid the backlash against civil unions, known as the "Take Back Vermont" movement.

Cable said that after Lisa contacted his group for help this summer, he helped her find legal representation in Vermont and Virginia. Last month the group sent a six-page fundraising letter to supporters and donors, arguing that Lisa should be entitled to custody because she is Isabella's "natural, responsible and loving mother."

The letter says Lisa is a "former lesbian" and states that "with the help of counselors, church, and [a] caring and Christian brother, she has begun to turn around her life."

Lawyers on both sides said that while it is likely the Vermont court will retain jurisdiction over the custody case, it is unclear whether Virginia will enforce an order based on a civil union law it does not recognize. Under the "full faith and credit" clause of the U.S. Constitution, state courts generally respect and enforce other states' judgments, but there are exceptions.

"The real showdown will be in Virginia, because giving any decision based on the civil union legitimacy would be the equivalent of exporting Vermont's law outside state borders, which is a dangerous precedent," said Mathew D. Staver, president and general counsel of Liberty Counsel.

Staver said the group fought to prevent a Georgia court from recognizing a Vermont civil union in a 2000 case, and in 2002 it helped persuade a Connecticut court not to dissolve a couple's Vermont civil union because it had no legal status in the state.

At least 38 states, including Virginia, have passed laws or amendments banning same-sex marriage. A push for an amendment to the U.S. Constitution banning gay marriage was defeated in the Senate this summer.

Since July 2000, unions of 7,029 same-sex couples, the vast majority from out of state, have been formalized in Vermont, according to health department records. Forty-four couples have legally ended their unions, which under Vermont law are accorded all the legal protections of marriage. (The state keeps no count of how many of those couples had children.) In Massachusetts, which on May 17 became the only state to allow same-sex marriage, about 2,500 gay couples were married in the week after the law took effect, according to a survey by the Boston Globe.

Janet, who runs a day-care center and lives in the white 1864 Victorian home she and Lisa once shared, said the couple moved to Vermont soon after Isabella was born in April 2002. She did not adopt the baby because she believed Vermont's civil union law protected her parental rights, she said. The couple's relationship soured in July of last year, Janet said, after Lisa had a miscarriage.

"We were both grieving, but she completely closed herself off to me," Janet said recently.

In early September, Lisa took Isabella to Winchester, Va., to live near her family. In November, she filed papers in Vermont to have their civil union dissolved. In June, a Vermont court ruled that Lisa should have temporary custody of Isabella until the case was decided and that Janet should be allowed visitation in Virginia.

Janet said that she has been permitted to visit Isabella only occasionally, and never alone. She has not seen the child since early June. "One minute you have this picture-perfect life, and the next minute it is totally falling apart," Janet said, sitting at her kitchen table with a dozen photographs of Isabella decorating the refrigerator behind her.

Janet and her advisers note that on the petition Lisa filed in November to dissolve the civil union, she listed Isabella as a child of the couple and asked that Janet be awarded "suitable parent child contact."

Lisa also waived her right to challenge Janet's parentage at the time. But after disputes led two previous attorneys for Lisa to withdraw from the case, her current attorney, Judy Barone, petitioned in May to withdraw that waiver. She has also asked the court to subject Janet to genetic testing to prove she is not Isabella's mother, a request Janet's Vermont attorney, Theodore Parisi, called "obviously bereft of purpose."

In a separate legal action, on July 1, Lisa filed a petition with the Frederick County Circuit Court, asking for sole custody of Isabella and claiming that "no rights arising or claiming to arise out of the civil union can be recognized or have any force" in Virginia.

Janet's attorneys have asked for that case to be dismissed, claiming that the Vermont court has jurisdiction. A hearing has been scheduled for next Friday. But the real test, Janet's attorneys say, will come after a judgment is issued in Vermont.

"The principle of one state court enforcing another state court's orders is so enshrined in our legal system that if [it was not enforced], the implications would be severe," said Greg Nevins, a senior staff attorney with Lambda Legal.

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