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Vt. Judge Claims Control of Same-Sex Custody Fight

By Jonathan Finer
Washington Post Staff Writer
Thursday, September 9, 2004; Page A11

A Vermont court has asserted its jurisdiction over a same-sex couple's contentious custody battle, finding Lisa Miller-Jenkins of Winchester, Va., in contempt for failing to permit her former partner to visit 2-year-old Isabella.

Rutland Family Court Judge William D. Cohen imposed no punishment. He said his goal was to ensure compliance with his earlier order granting Janet Miller-Jenkins visitation until custody of the child is determined.

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The dispute between the women, who exchanged vows in Vermont in 2000, has been described by gay-rights advocates and opponents as a test of that state's civil union law, which took effect in 2000 and offers same-sex couples the legal protections of marriage under state law.

The case has sparked a jurisdictional squabble between courts in two states with decidedly different laws concerning the legal rights of same-sex couples.

Lisa Miller-Jenkins gave birth to Isabella in Virginia after becoming pregnant through artificial insemination. She and her partner lived together in Vermont until they split up last summer. Lisa Miller-Jenkins took Isabella to Virginia, where her family lives, and asked the Vermont court to dissolve the union.

Now both women are seeking custody of the child, with Lisa Miller-Jenkins filing a second petition in Frederick County Circuit Court in Winchester.

Frederick County Judge John R. Prosser ruled last month that Virginia has jurisdiction over the dispute and described Lisa Miller-Jenkins as Isabella's "sole parent," citing a state law that prohibits recognition of same-sex unions.

But in the contempt order issued in Vermont on Sept. 2, Cohen noted Lisa Miller-Jenkins's initial decision to bring her action in Vermont. He said, "The judicial system as a whole simply cannot allow parties to try to take advantage of legal and cultural differences which may make one state favor the position of a particular party over another."

In an order the previous day, Cohen said he would appoint a lawyer to represent Isabella's interests in Vermont.

Janet Miller-Jenkins, 39, who lives in the house the couple once shared in Fair Haven, Vt., said she has not seen Isabella since early June. Before that, she said, Lisa Miller-Jenkins, 35, had allowed occasional, supervised visits. Janet Miller-Jenkins said she is scheduled to visit Isabella in Virginia this weekend.

"I am sure my daughter feels like I have abandoned her when that couldn't be farther from the truth," she said in a telephone interview. "[Lisa] is basically trying to make her own court order by putting all of these additional stipulations."

Lisa Miller-Jenkins's Vermont attorney, Judy Barone, would not comment on the contempt order, saying, "The court speaks for itself."

She said Janet Miller-Jenkins's parentage rights should not be recognized because she is not Isabella's biological mother and did not adopt the child.


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