Virginia vs. Vermont

Virginia should step aside -- and let Janet Miller-Jenkins see her daughter.

ISABELLA MILLER-JENKINS has two mommies. That isn't a big deal these days, and it shouldn't be, except for this: Isabella's biological mother, Lisa Miller-Jenkins, doesn't want her former partner, Janet Miller-Jenkins, to have any visitation rights -- though the two women decided together to conceive the child (Lisa had artificial insemination through an anonymous donor they jointly selected) and raised her together. When they split up two years ago, Lisa Miller-Jenkins initially acknowledged that Janet was Isabella's parent and asked that Janet be given "suitable parent-child contact." A judge in Vermont, where the couple had been living, agreed.

But then Lisa, who moved back home to Virginia after they split, changed her mind. And in a legally flawed and morally reprehensible decision, a state court judge in Virginia backed Lisa. As a result, Janet hasn't been allowed to see Isabella for more than two years, since June 2004. Last week the Vermont Supreme Court sided with Janet by ruling, correctly, that the Virginia court shouldn't have intruded. An appeals court in Virginia has been awaiting the Vermont ruling before issuing its judgment in the case. It should honor the Vermont decision and let Janet finally see her daughter.

This case has gotten tangled up in Vermont's civil union statute (Lisa and Janet entered a civil union in 2000) and Virginia's small-minded reaction to it, the Affirmation of Marriage Act, which declares "void in all respects in Virginia" any "civil union, partnership contract or other arrangement entered into by persons of the same sex in another state." In fact, though, neither the Vermont civil union law nor Virginia's anti-gay-marriage law is legally relevant.

As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts.

In this case Vermont exercised jurisdiction over the dissolution of the Miller-Jenkins civil union and made a custody determination -- which under the parental kidnapping law Virginia is obliged to respect. Child custody and visitation cases are supposed to be about the best interests of the child. In this case, the Vermont court found, Isabella has two parents who love her and who are entitled to see her. Nothing in Virginia's intolerant Affirmation of Marriage Act need prevent that from happening.