Thursday, November 30, 2006
FOR MORE THAN two years, Janet Miller-Jenkins has been blocked from seeing her 4-year-old daughter because of a nasty custody dispute with her ex-spouse, who has been defying a court order to allow regular visits. This week, the Virginia Court of Appeals issued an opinion that should be utterly unremarkable: It held that under federal law, Virginia courts must honor the custody orders of their sister courts in Vermont, where Ms. Miller-Jenkins and her ex were joined and where they asked a court to dissolve their union.
Yet the court's decision in Miller-Jenkins v. Miller-Jenkins is a big deal, because what's in question is a civil union, not a marriage. A lower Virginia court had refused to give effect to the Vermont courts' orders allowing Ms. Miller-Jenkins to visit her daughter, citing a state law that prohibits any recognition of civil unions or other same-sex relationships from out of state.
Legally, this case isn't hard. Morally, it's even easier. Janet and Lisa Miller-Jenkins entered a civil union in Vermont, had a child together -- Lisa is the biological mother -- and then split. After petitioning the Vermont courts to dissolve the union and make a custody determination that explicitly recognized Janet as a parent, Lisa took their child, Isabella, to Virginia and began defying the very order she had requested. The Vermont court held her in contempt, but Frederick County Circuit Judge John R. Prosser gave her sanctuary, ruling in 2004 that under Virginia law she was "the sole biological and natural parent" and that she "solely has the legal rights, privileges, duties and obligations as parent."
This was lawless, as the appeals court has now found -- it was a triumph of anti-gay politics over clear statutory command. Federal law prevents any Virginia court from interfering in an ongoing custody case in Vermont or any other state. There is no exception for gays or lesbians. The idea is to prevent parents who don't like the result they get in one state's courts from trying their luck elsewhere. Whatever hateful things Virginia law may say about civil unions are therefore irrelevant; its courts must honor the orders of that Vermont court.
Sadly, further appeals are likely, so in the immediate future her clear victory in court may not bring Janet Miller-Jenkins closer to her daughter. That's wrong. Their unlawful separation has lasted far too long already.