By April Witt
Sunday, February 4, 2007; W14
JANET AND LISA MILLER-JENKINS MADE LOVE IN THE MORNING BEFORE LEAVING FOR THE DOCTOR'S OFFICE. At least that's how Janet remembers it. "We had a connection in the morning before we left," Janet said. Afterward, eager to keep their tender connection alive amid the clinical setting of the infertility specialist's office, Janet laid her hands upon her partner -- one palm on Lisa's thigh, the other on Lisa's upper arm -- as a doctor inseminated Lisa with sperm from an anonymous man the two women knew only as donor No. 2309. It was, according to Janet, a ritual the Virginia couple repeated more than once before Lisa gave birth April 16, 2002, to a 5-pound, 15-ounce baby girl named Isabella Ruth Miller-Jenkins.
"This baby was made in love," said Janet, now 42 and living in Vermont.
Lisa, 38, offers a dramatically different account of the begetting of Isabella. According to her, Janet didn't even go with her to the fertility doctor's office on the day Isabella was conceived.
That's just one of many issues Lisa and Janet are arguing in court, where the final chapters of their modern love story are being written. As with other couples who have split, their truths have diverged; through the lens of loss, each views their time together differently. Unlike most warring couples, however, the once hopeful and happy Miller-Jenkinses are at the center of a high-stakes, ideologically charged legal dispute waged across several courtrooms in two states. On one side are lawyers who are leading gay-rights activists; on the other are legal combatants for a conservative Christian foundation associated with Jerry Falwell.
These lawyers are sifting through every detail of the Miller-Jenkinses' lives -- from how Isabella was conceived to who burped the baby. They are not fighting over the mundane detritus of love lost: Who gets the house? Who gets stuck with the old car? Who is on the hook for braces should Isabella require them? They are debating questions so profound that the answers have the power to affect legions of families gay and straight: Who is a parent? Who has the legal rights of a parent?
In the Miller-Jenkins case, those questions have been raised in Vermont, where state statutes explicitly recognize parental rights for same-sex couples in civil unions, and in Virginia, where they don't. That discrepancy has left Isabella -- and a growing number of children like her nationwide -- on the legal battlefield of what one judge in the case called civil war.
"THAT'S GRANDPA." LISA'S DAD.
"That's Aunt Jennifer and me."
Isabella, 4 1/2 years old, narrated the family photographs arrayed atop an old piano. It was the day before last Thanksgiving in a toy-strewn house in Winchester, Va. Isabella is a cheerful sprite with butterflies on her dress. The house where she lives is decorated with upbeat plaques and banners with inspirational sayings such as "Believe" and "Scatter Kindness."
"That's me on the horsy at the fair," Isabella said, pointing out another photo atop the piano. "That's me with the leaves."
Isabella smiled shyly when she got to the most important picture of all. "That is Mommy and me," Isabella said. She pointed to a snapshot in a square frame emblazoned: HAPPINESS.
If, as many people believe, Isabella has two mommies, she doesn't seem to know it. The little girl hasn't seen Janet since she was 2 1/2 years old.
"I just feel this is what God is leading me to do," Lisa, a preschool teacher and assistant administrator of a day-care center, said serenely.
When Lisa speaks of her former partner within earshot of Isabella -- which she tries not to do -- she is circumspect. "The Other Party had our van repossessed," Lisa said, whispering so Isabella wouldn't overhear. "But that's okay. God has always provided for us from Day One."
JANET JENKINS GREW UP IN A LARGE CATHOLIC FAMILY in Falls Church and attended parochial schools for much of her childhood. Her parents have been married for 53 years. Her father, a firefighter, retired as operations chief of the Arlington County Fire Department. "She's always been a tomboy," Claude "Bucky" Jenkins, 71, said of his daughter. "She's very strong, not only physically, but mentally. She's headstrong. She gets that from me." In her rebellious youth, Janet drank too much, even before her brother Ricky committed suicide when he was 22. She joined Alcoholics Anonymous and eventually changed her life, her parents recalled.
Janet meant to go to college, but she never did. As an adult, she was so private that she never even came out to colleagues at the Annandale florist shop where she worked, mostly as the office manager, for 15 years. "They called me the mystery woman," Janet said. "They'd ask me about my boyfriend, and I'd change the subject."
Rather than be in the vanguard of gay rights, she quietly lived for 13 years with her first lesbian partner, Lauretta Simmons, a political consultant who once worked for the Republican National Committee. Janet worked at various business ventures, including helping Simmons as a political fundraiser. "Janet is not afraid to try anything," her father said. "She'll grab ahold of anything that goes 'round."
Lisa Miller grew up just a few miles away, in Arlington. Her parents divorced when she was 7, leaving Lisa alone for years with a mother she describes as mentally ill. Lisa became her mother's sad caretaker, she said. "I never knew what was going to happen next or what I'd do that would set her off," Lisa said. She was sexually abused as a child, she said. Her mother forbade her to date. "I tried," Lisa said. "She would always find out. 'All men are evil.' That's what I grew up with. 'They only want one thing.' " At the same time, Lisa said, "all my life I was told, 'You'll never make it on your own.' I'd bring home A's and hear, 'Why didn't you get A-pluses?' " Lisa sought solace, order and companionship at a Baptist church in Arlington. "I was there every time the doors opened," she said.
She attended Northern Virginia Community College and James Madison University, earning an undergraduate degree in psychology and beginning work on a master's in special education. At 19, she met her first boyfriend, a fellow student, and married him three years later. The marriage didn't work out, and Lisa wasn't sure why. Given her childhood trauma, she said, it was difficult for her to be physically or emotionally intimate unless she felt very safe. "That was a huge issue, my childhood abuse," she said. "We never really worked through it. It just drove us apart."
For the first time in her life, she drank alcohol, and then came to believe she was drinking too much as a way to hide from her problems. When she met and befriended a lesbian at work, she wondered if maybe that's what she was, she recalled. She'd never had a sexual encounter with a woman. Still, she went once to a support group for gays and lesbians having difficulty coming out. "That was hilarious," Lisa recalled. "They were like, 'Are you sure you are in the right group?' " She wasn't sure. When she did eventually have a romantic relationship with a woman, what mattered to her most was the companionship, she said. "I did not feel sexually attracted to women," Lisa said. "It was kind of like: Wow! I feel needed, I feel wanted, I feel a part of something."
What made Lisa happiest, she said, was helping children. She alternately worked as an aide at a children's psychiatric hospital, as a day-care specialist with a social service agency and as a nanny. It was not a life that provided much income, or even regular health benefits, but she found the work rewarding, she said.
In December 1997, Janet and Lisa met at an AA meeting, Lisa said. Lisa, 28 at the time, was distraught that day. She was working as a nanny, living in a client's basement and barely scraping by financially. Her mother had died suddenly, alone in her condominium, and the body hadn't been discovered for a few weeks.
Janet, then 32, had her own troubles. She and Simmons had broken up and were waging a dispute over assets. Simmons was later sentenced to one year in prison for embezzling $84,000 from Tom Ridge's gubernatorial campaign coffer; Simmons said at the time that she was under extreme duress over a nasty breakup and embezzled the money to pay legal bills.
Within a few months after Lisa met Janet, she moved in with her.
"Before I met Lisa, I was a career woman," Janet recalled. "I wasn't about having kids . . . I was looking to change that. She was a great cook. She loved to bake. I love to eat. I love children. She always said she wanted to be a stay-at-home mom and raise children . . . I loved her."
Janet's father, Bucky, recalled his daughter's relationship with Lisa as having a rocky start. At one point, "they had some kind of a spat," he said. "Janet said: 'I'm going to kick her A-double-S out. I'm going to put her clothes on the curb.' My answer was: 'You can't do this. The kid has no place to go. You've already said you'd allow her to move in. You can't put her out on the street. You don't do stuff like that.' " Looking back now on all the loss and sorrow that eventually flowed from Janet and Lisa's relationship, Bucky sometimes wishes he'd kept his fatherly advice to himself.
Lisa later testified that Janet was physically and emotionally abusive to her -- allegations Janet denied under oath. Lisa stayed with Janet, she later testified, because "I did not think I could make it on my own."
"I don't think that I ever truly loved Janet," she said in an interview. "I don't think I knew what love was then."
Nevertheless, the women eventually decided to formalize their union. As symbols of their commitment, they exchanged homemade art projects: Each woman traced her hands and drew hearts in the center of each palm, Janet recalled. They executed wills, powers of attorney and health-care surrogacy documents formalizing, as best they could under Virginia law, their commitment. "We knew we wanted to spend the rest of our lives together," Janet said. "We knew that we wanted to have children. Early on, I knew it was going to be challenging in Virginia."
THE WOMEN INTERTWINED LIVES AT A TIME when options for gays and lesbians trying to form legally recognized families were expanding. In Vermont, a new law recognizing civil unions between same-sex couples went into effect on July 1, 2000.
On December 19 of that year, Lisa and Janet took a brief vacation to Stowe, Vt., to enter into a civil union there, even though their home state of Virginia would not recognize it. Snow blanketed Stowe. The resort was decked with Christmas greenery, as was the home of the justice of the peace where the ceremony was held, Janet recalled. "It was Norman Rockwell," Janet said. "It was beautiful and very low-key. I never wanted a big wedding. It was all about the commitment and the lifestyle we wanted to have."
Lisa recalled being uncertain about taking such a monumental step "because of the way the relationship was going," but she was hopeful that getting hitched might help her and Janet get along better.
Back home in Hamilton, Va., the women ran a day-care business in their home. They joined a Unitarian-Universalist congregation in Sterling. Janet and Lisa helped run children's church services and were named to a committee to make the congregation officially welcoming to bisexuals, gays, lesbians and the transgendered.
In early 2001, the couple decided they wanted to have a baby. Lisa, who was four years younger, would get artificially inseminated. The women decided to find a sperm donor whose physical traits -- such as green eyes -- would be a close match to Janet's, both later testified.
By late August, Lisa was pregnant. To Lisa, getting pregnant was a religious experience. "I thought it was a miracle," she said. As her unborn child grew and stirred, she said, so did her faith.
It was a difficult pregnancy. Lisa's doctor ordered her to stay on bed rest to try to stave off premature labor. Janet recalled trying to support Lisa every way she could. "I had to take care of her 24 hours a day," Janet said. "I was running a [home] business, as well as getting up and making her breakfast, making her comfortable, making sure she had magazines and books . . . I would leave her in the living room, and then I would go run my business. We had walkie-talkies so we could communicate. If she needed anything, all she had to do was hit the walkie-talkie."
Lisa recalled that time differently. She later testified that Janet regularly blew up and belittled her, allegations Janet called a fiction designed to discredit her. "Again, it was the monthly blowups," Lisa testified. "She would restrain me from going into another room. She would ask me for a divorce again. She would tell me, though, that I couldn't make it on my own."
When Isabella was born, Janet had the honor of cutting the umbilical cord. Recalling the euphoria of the birth, Janet said: "There is no drug in the world that good. It was awesome. I remember, she sucked my pinkie."
Lisa and Janet had researched how best to bond with the baby, Janet recalled in an interview. They slept together with Isabella in a family bed. "Every two or three hours, Isabella would wake up so Lisa could nurse her," Janet said. "I would take Isabella from that point. I would burp her . . . I would rock her. She would go back to sleep on my heartbeat."
Janet's parents were enthralled and embraced Isabella as their newest grandchild, they said. "It was such a gift to have a baby in the family again," Ruth, now 70, recalled. Ruth and Bucky were bemused, but happy to join in, when Janet and Lisa ceremoniously planted Isabella's placenta beneath an apple tree sapling at the Jenkinses' vacation home in Berryville, Va. The little tree grew at the base of a hillside with space for more little trees, which suited Ruth and Bucky fine. "We wanted lots and lots of grandchildren," Ruth said.
That August, when Isabella was 4 months old, the Miller-Jenkinses moved to Vermont. They wanted to live in a state that recognized their commitment to each other and offered them legal protections as a family, Janet said.
They bought a Victorian house in Fair Haven, a quiet village where there are summer band concerts on the town green. Janet, the provider, got a job as a security guard, working nights. Lisa stayed home with the baby full time. Eventually, the women again ran a day-care business in their home. According to Janet, their relationship was "very close at that time."
Janet's parents came to visit for Isabella's first birthday. They worried that their daughter, who had always taken the lead role as financial provider, was working so hard to support Lisa and Isabella that she was exhausting herself, Ruth said. "They really loved one another," Bucky recalled.
Lisa eventually hoped to get pregnant again, both women said. A health-care professional Lisa consulted about expanding their family counseled her that Janet should legally adopt Isabella, Lisa testified. According to Lisa, Janet refused to adopt Isabella. Janet later denied under oath that she and Lisa had ever discussed adoption.
Lisa said she felt isolated and lonely in Vermont. According to Lisa, Janet continued to have an explosive temper. And Lisa came to believe that they had fundamentally different values, she said. "There were numerous incidents of Janet going to Webshots.com and putting up naked women on the screen saver, and I would ask her to please change it," Lisa testified. "I don't have clean hands, either. Previously, before . . . the baby was born, [pornography] was used in our relationship. When we moved to Vermont, Isabella was 4 months old, and I said this stuff has to go . . . There's a baby in this house now. I don't want that."
Financial woes increased tensions in the Miller-Jenkins household. Janet would later declare bankruptcy, saying she was roughly $50,000 in debt. Some of that debt, Janet said, was from Lisa's fertility treatments.
By late 2003, efforts to have a second child had failed. Janet recalled that Lisa was grief-stricken. But Lisa said she was relieved she wasn't going to have another baby, and she took it as an opportunity to leave.
After a year in Vermont, Lisa told Janet she wanted to move home to Virginia, alone with Isabella. Lisa said in an interview that Janet gave her a deadline for getting out of the house. Janet denied that and said she viewed their parting as a trial separation. The women worked out an informal understanding that Isabella, then 17 months old, would live with Lisa, but Janet would pay several hundred dollars monthly in child support and visit Isabella regularly.
Janet helped Lisa load up a 15-foot rental van and even drove Lisa, Isabella and one of their three pet cats to Virginia. Then Janet flew home to Vermont.
Lisa's brother gave her money to pay the first four months' rent for a small house in Winchester. She lived 10 minutes from the vacation home where Janet's parents spent many weekends and Isabella's apple tree grew. Lisa opened a day-care center in her home so she could support herself and still be with Isabella full time.
She and Janet were initially cordial. Janet sent money, came down some weekends to stay with her parents and visited Isabella. Once, "Lisa had made me like three different kinds of cookies and mailed them to me with a card from Isabella and from her," Janet recalled. "Really sweet things."
Ruth and Bucky visited Isabella and Lisa regularly and worked hard to maintain their warm relationship, they said. "Even though Janet and Lisa had problems, we had no problem with anyone," Bucky said. "The loser in the whole thing, of course, was the baby."
Lisa began attending a conservative Christian church. "All those years of going to church, going to Christian schools, all that started to come back to me," Lisa said. She began to wonder, she said, if she really was gay or merely sexually confused as a result of childhood trauma. Searching the shelves of a Christian bookstore for answers, she found a book called Restoring Sexual Identity: Hope for Women Who Struggle With Same-Sex Attraction. The author, Anne Paulk, and her husband, John, became the poster couple for the conservative Christian ex-gay movement in the late 1990s, when they were featured in full-page newspaper ads urging gays and lesbians to become straight. "Anne Paulk -- wife, mother, former lesbian," said one ad featuring a beatific photograph of the author, her wedding ring on prominent display. "I'm living proof that Truth can set you free."
The Paulks and others working in ex-gay Christian ministries infuriate many gay activists, liberals and therapists with their contention that homosexuality is not biologically determined and that gays and lesbians can choose to be heterosexual.
Lisa, however, felt relieved and encouraged reading Restoring Sexual Identity, which posits that many women experience transient same-sex attraction as a result of childhood abuse. Lisa was determined to "leave the lifestyle," she said. "It wasn't a struggle," she recalled. "I felt peace."
ON NOVEMBER 23, 2003, Lisa filed a standardized form in Rutland County (Vt.) Family Court seeking dissolution of their civil union.
She didn't retain a lawyer to help her fill out the paperwork. She didn't have money for lawyers. She was confused about which boxes on the form she was supposed to check, she later said. "I called the court clerk," she testified, "They said: 'Check off everything. That's what everybody does, and then the court will decide.' " One of the boxes on the form read: "The following are the biological or adoptive children of said civil union." Lisa wrote "Isabella Miller-Jenkins" in the box provided.
She checked one box indicating that she wanted custody of Isabella. She checked another box asking the court to award Janet "suitable parent/child contact." But that wording wasn't exactly what Lisa wanted to convey, she later explained. So in the margin next to that box, Lisa wrote the word "supervised." Lisa was happy, at that point, for Janet to visit with Isabella, she recalled; but she expected, as Isabella's biological mother, to maintain ultimate parental authority over who saw her daughter and under what circumstances.
Given that expectation and hope, filling out the form may have been the worst thing she could have done. Had Lisa waited a few more months before filing to dissolve her civil union, Isabella would have been considered a legal resident of Virginia; the state of Vermont might have had little say over her future.
In early 2004, seven weeks after Lisa asked the court to dissolve their union, Janet filed a counterclaim seeking custody of Isabella for herself and visitation for Lisa. She felt like Isabella was as much her daughter as she was Lisa's, she said.
The Rutland County Family Court was now empowered to decide whether Isabella lived with Lisa or Janet and how often the child would see each parent.
Lisa didn't doubt that Janet and Isabella loved each other, and that it was in Isabella's best interests for them to see each other regularly, she later testified. She just didn't think that Janet was a legal parent with rights equal to hers. "To me, it was more like Isabella and Janet had a deep friendship," rather than a mother-daughter bond, Lisa said. Janet scoffed: "Friends don't pay child support for other people's kids."
Lisa hired Linda Reis, a family law attorney in Rutland County. Reis notified Judge William Cohen that they planned to argue that Janet was not Isabella's legal parent. In the meantime, Reis and Janet's attorney tried to work out a visitation schedule. "It was all kind of mired," Reis recalled. After a few months, Lisa, frustrated by the case's slow pace, decided to change lawyers. It was a decision that would change the course of the case -- and perhaps her life.
As her next court date loomed, Lisa worked her way through the Rutland County Yellow Pages and searched the Internet for a new lawyer. Eventually, she contacted Schoenberg & Associates and was steered to the firm's expert in civil union law, Deborah Lashman.
Lashman is a central figure in the history of legal rights for gay parents in Vermont. In a landmark 1993 case, Lashman had tried, unsuccessfully at first, to adopt the biological children of her longtime lesbian partner, Jane Van Buren. Van Buren had conceived the children through artificial insemination; she and Lashman were raising them together. A probate judge had ruled that Lashman could not adopt the children because she and Van Buren were not married, an option not available to them under Vermont law. The women appealed. In the nation's first appellate-level ruling in such a case, the Vermont Supreme Court said that Lashman could adopt her partner's biological children.
Lashman later became an outspoken board member of the Vermont Freedom to Marry Task Force, which supports same-sex marriage.
Lisa didn't know any of that when she hired Lashman, she later said. She maxed out new credit cards and borrowed money from her father to send Lashman the $3,000 retainer she requested. Then, three days before her next court hearing, Lisa phoned Lashman. "She told me at that point she did not really have time to talk, that I needed to meet her at the courthouse on Monday," Lisa testified.
Thirty minutes before the hearing, Lisa met Lashman for the first time in the courthouse hallway. Lisa's new lawyer "told me that she felt that this was a custody case and that we needed to proceed as such," Lisa later testified. "I said, 'No. I don't even feel that she's a parent, so why should she even have visitation or custody.' She said, 'The judge isn't going to go for that,' and I needed . . . to come up with some kind of [visitation] schedule. I said, 'No, I don't agree with it.' And she said, 'You have to get used to the fact that Janet is a parent.' And I said, 'No, I don't.' And then we were called into the courtroom."
According to a transcript of the hearing, Judge Cohen began by saying, "The last time we were in court, when Ms. Reis was representing the plaintiff, there was an issue at that time involving, I believe it was parentage and civil unions and who the parent would be. I understand that there's been a change in tactics, or a change in course, I guess, is a better word."
"Well, I have a different interpretation of the law than Ms. Reis," Lashman told the judge. "My reading of Vermont law is . . . both these folks are legal parents of Isabella."
"Presumed," the judge said.
"Presumed because she was born during the course of the civil union," Lashman said.
"Right," the judge said.
"So I don't think that's an issue at this point," Lashman said.
"That was an issue she raised," the judge noted. "Your client's waiving that issue now?"
"She is, your honor," Lashman said.
Lashman later said in an interview that Lisa knowingly waived her right that day to contest that Janet was Lisa's mom. Lisa, however, disputes that.
Lisa later said she was nervous and confused. During a break in the hearing, Lisa later recalled under oath, she asked Lashman: " 'What just went on?' . . . She stopped me and said, 'It is my policy not to discuss anything in the courtroom at break, and I won't discuss it with you until afterwards.' "
After the hearing, Lisa tried again to discuss the matter, but Lashman rebuffed her, Lisa testified. Lashman disputed that, later testifying that Lisa didn't question her representation until the following month. On April 23, Lisa faxed Lashman a letter stating that she did not agree that Janet was Isabella's legal parent and that she believed Lashman had improperly waived her right to challenge Janet's parentage, Lisa later recalled under oath. Lisa asked Lashman to go back to the court and undo the damage by putting the issue of parentage "back on the table," she later testified. After Lisa sent the fax, she and Lashman spoke on the phone, both testified. Lisa's attorney told her that if she was going to insist that Janet was not Isabella's parent, then Lashman was going to withdraw from the case.
Lisa insisted. Lashman withdrew.
THAT EASTER, LISA SENT A GREETING CARD TO JANET, who considered herself spiritual rather than a strict adherent to any religious creed. "Janet, Easter is about God's love to us," Lisa wrote. "I pray that you experience God's love as Isabella and I have. We both pray for you to come to God for salvation."
Lisa also penned a little note, ostensibly from Isabella, on the Easter card. That note referred to Janet by a new nickname: "Up" because Isabella sometimes said "Up" or "Uppy" when she wanted Janet to pick her up. Janet, who wanted to be called "Momma," later testified that she felt Lisa was orchestrating a demotion of her standing in Isabella's eyes.
Lisa, reeling from her dealings with Lashman, felt as though she was losing a legal battle she did not understand, she said. She began to search for someone who might help her argue that she was Isabella's only mother. Eventually, she found Steve Cable, the president and founder of an organization promoting conservative social values called Vermont Renewal, who had lobbied vigorously against Vermont legally recognizing same-sex unions.
Cable recalled that after a long conversation, "I realized how important this case was going to be in Vermont. It was the first case of its type nationally."
A veteran of Vermont's culture wars, Cable tried to educate Lisa about the ideological implications of her legal dispute with Janet and whom she could expect to support or oppose her. "I helped her understand a lot of things," Cable said. "She had no idea when I explained to her who Deb Lashman was. I felt sorry for her."
Cable started making calls to find Lisa a new lawyer.
JUDY BARONE HAD BEEN A FAMILY LAW ATTORNEY IN RUTLAND for more than 20 years when she agreed to represent Lisa. Barone concluded that her new client had been unjustly deprived of her right to argue that Janet was not Isabella's parent, she said. So she filed a motion asking Judge Cohen to withdraw the waiver of that right.
Cohen wanted to know if Barone was suggesting that Janet was not entitled to any parental rights solely because she had no biological connection to Isabella.
"No," Barone said. "The law in Vermont is clear that a child born during the time of the marriage to one of the people in the marriage . . ."
"And civil union," the judge interjected.
"And civil union," Barone agreed. "Would be rebuttably presumed to be a child of the civil union, the marriage. That leaves the right of either party to rebut the presumption. My client chose to rebut the presumption. She noticed the court of her choice, and it was waived involuntarily by her counsel that morning. Our request, judge, is that we put that issue back before the court."
Lisa and Janet's breakup had exposed a fundamental flaw in Vermont law, Barone suggested. Vermont's civil union statute made it a rebuttable presumption that Janet was Isabella's parent, yet spelled out no specific grounds for rebuttal. Other Vermont statutes, which predated the civil union law, detailed two routes to establishing legal parental rights: having a biological connection to a child, or adopting. Janet would not meet either of those standards, Barone said. "I think this case is really about the standard in Vermont that we have to be able to establish parentage," Barone told the judge. "What can be more basic and important?"
Janet's lawyer, Theodore Parisi, said that he found it a "huge stretch" to think that the Vermont statutes requiring proof of adoption or a biological connection to establish legal parental rights applied to people in civil unions.
Cohen agreed. Janet "is presumed to be -- in my view, your client without question is presumed to be the natural parent . . . by the basis of the civil union," Cohen told Parisi.
"We've got to look at the law," Barone countered. "That's our job here . . . If there is a problem with this law, then that's not your fault, my fault, this couple's fault. The solution will come. But we can't deny her her rights . . . There's a law that says who the parents are. We've gone by this for years in marriage, and in civil unions we have to work this out. It may be uncomfortable, and I grant you that it is for everybody concerned. But it's important."
"Well, I don't find it uncomfortable," Cohen said. "I'm not going to add an extra layer because it's a civil union. I think that . . . is completely contrary to why the legislature in Vermont developed a civil union. It developed so that it is a parallel system . . . There's no additional requirement."
The judge asked Barone to consider the situation of a heterosexual couple in which an infertile husband agrees for his wife to be artificially inseminated with donor sperm to get pregnant. "You can't sit here today and tell me that, under those circumstances, you would require that father to have no parental rights because he never went through an extra process of adopting," Cohen said.
"I don't know about that, judge," Barone said. "I have looked at the law in Vermont on that scenario with a married couple, and there is no law that dictates what we do . . . It always makes good sense to determine on what basis we're giving legal rights before we start handing them out."
"I suspect that, no matter which way I go, it's going to be decided by the Supreme Court," Cohen replied. "But as we sit here today, and by the fact that we all know what occurred because there's been testimony on it, the defendant is presumed to be the parent, period.
"Ms. Lashman, correctly or incorrectly, streamlined the case by saying that the issue involving parentage was not an issue," the judge continued. "Now, whether or not that was correct, at this point it is done."
Nobody was leaving the hearing that day, the judge said, until both sides worked out a temporary visitation schedule that allowed Isabella, 25 months old, to spend time with both Janet and Lisa. He would decide final custody later.
Parisi told the judge that in addition to visiting Isabella in Virginia some weekends, Janet also wanted to bring her to Vermont at least one week each month.
"We're going to grant the request," the judge said.
Lisa was devastated. "I felt like Isabella had become a political hostage," she said.
Not long after the hearing, Lisa e-mailed a prayer request to Exodus International, a Christian ex-gay group. Someone from Exodus e-mailed back suggesting that Lisa needed more than prayers. They suggested Lisa contact lawyers for an organization called Liberty Counsel.
Liberty Counsel, based in Florida, is partly funded by religious conservative leader Jerry Falwell. The group's founder and top lawyer, Mat Staver, is dean of the law school at Falwell's Liberty University. According to its Web site, Liberty Counsel is dedicated to "advancing religious freedom, the sanctity of human life and the traditional family." Liberty Counsel lawyers agreed to advise Lisa. They helped her find an attorney to represent her in Virginia.
Miller-Jenkins v. Miller-Jenkins wasn't just a private heartache anymore. It was an ideological cause.
Now Lisa made it increasingly difficult for Janet to see Isabella, Janet testified. Janet flew to Virginia and showed up at Lisa's door to pick up Isabella, only to find no one home, she said. Janet telephoned daily; Lisa said Isabella didn't want to talk to her, Janet testified.
"I cried every day," Janet said.
ON JULY 1, 2004, VIRGINIA'S MARRIAGE AFFIRMATION ACT BECAME LAW. The new law prohibited civil unions or other contracts "between persons of the same sex purporting to bestow the privileges or obligations of marriage." Furthermore, the law said, same-sex unions performed in other states "shall be void in all respects in Virginia, and any contractual rights created thereby shall be void and unenforceable."
Some of Lisa's new advisers thought that whatever Judge Cohen had ordered in Vermont now might be irrelevant in Virginia. On the day the Marriage Affirmation Act became law, Lisa, through a Winchester attorney named Phillip Griffin, filed a motion in Virginia's Frederick County Circuit Court. Lisa wanted a Virginia judge to declare that she was Isabella's sole parent and that any claims Janet made were "void, illegal and/or unenforceable."
When Cohen learned of the Virginia filing, he issued a sharp rebuke to Lisa. "This Vermont Court has and will continue to have jurisdiction over this case, including all parent-child contact issues," Cohen said. "This Court is unaware of any proceeding available in a state that does not recognize a civil union to resolve the issues of this case. This Court will not and cannot defer to a different State . . . The Temporary Order for parent-child contact (is) to be followed. Failure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody."
But in Frederick County, Judge John R. Prosser wasn't ready to concede the point. He issued a ruling from the bench temporarily staying any visitation between Janet and Isabella, except for supervised contact in Virginia, until he could make a ruling on whether Janet was a legal parent.
Cable flew from Vermont to Virginia to help organize a news conference. Gay-rights activists rallied to Janet's defense, including Joseph Price, a lawyer from Arent Fox in Washington, who agreed to represent Janet in Virginia pro bono.
Janet and Lisa now had legal disputes in two states, contradictory rulings, burgeoning legal teams, a growing list of allies and increasingly hard feelings.
IN MID-AUGUST 2004, THERE WAS ANOTHER HEARING BEFORE COHEN IN RUTLAND FAMILY COURT. Janet was there to testify that Lisa had stopped allowing her to see Isabella in violation of the court order. She was asking Cohen to find Lisa in contempt and transfer custody of Isabella to her.
Lisa was in a lawyer's office in Winchester, Va., listening in on speakerphone.
"I believe that no matter what this court does here," Barone told Cohen, "in the long run, it will not be enforceable against Virginia residents, because Virginia has a statute that says that any matter involving civil unions . . . will not be given any credence in the state of Virginia."
"I can see how it's setting up," the judge said. "It needs to be decided by, well, a different court than this one and a different court than the trial court in the Commonwealth of Virginia, as well." Isabella was now 28 months old. It had been almost a year since she'd lived in Vermont with Janet and 2 1/2 months since they'd even seen each other.
"Do you believe that there would be adverse reaction on Isabella to being separated from Lisa Miller-Jenkins in the event the court ordered custody of the child to you?" Janet's lawyer asked her. "No," Janet said.
Barone implored Cohen not to transfer custody of Isabella to Janet at this "tumultuous time" while two courts jockeyed for jurisdiction. "Changing the custody of this child, at this time, will not only be severely detrimental to the child, [it] will upset the apple cart, will further put these people at odds with each other and all to the expense of this little person."
"Janet said that she sees that the child would not have any difficulties in making an adjustment should this court order custody over to Janet," Barone said to Lisa. "Do you see it the same way?"
"No, I do not," Lisa testified by speakerphone. "It would be extremely detrimental to Isabella, and it would affect her emotional security for the rest of her life."
Cohen wasn't ready to make a decision. They had another hearing scheduled in a few days. The star witness: Deborah Lashman.
LASHMAN, CALLED TO TESTIFY BY LISA'S NEW LAWYER, was on the stand reading from various subsections of Vermont's civil union law to explain why she had told Lisa that she was certain that both she and Janet were Isabella's legal parents.
"The rights of parties to a civil union with respect to a child of whom either becomes the natural parent during the term of the civil union shall be the same as those of a married couple with respect to a child of whom either spouse becomes the natural parent during the marriage," Lashman read.
"Is there any case in this jurisdiction that gave you the information that Isabella's parent was Janet?" Barone asked the lawyer.
"To my knowledge there's not a case in the Vermont courts prior to this one," Lashman said.
"Isn't it a fact, that you told her: 'She's a legal parent. Get used to it?' "
"I never said 'Get used to it,' " Lashman said. "I don't talk to my clients that way."
"Do you agree with me," Barone asked Lashman, that under Vermont law the concept that Janet is Isabella's parent is "a rebuttable presumption?"
"Yes," Lashman said.
"But did you tell her about the rebuttal that she could have to that presumption under the statute?" Barone asked.
"Did I -- she and I talked about -- "
"Well, it's a yes-or-no question," Barone said.
"I don't think I specifically said . . . the statute says it's a rebuttable presumption," Lashman said.
"And, in fact, you never used the words 'rebuttable presumption' with her, did you?"
"No," Lashman said. "I probably did not."
"You never told her what a rebuttable presumption meant, did you?"
"No," Lashman said. "I'm sure we didn't have that conversation . . . We talked about why, in my opinion and the law, Janet was a parent . . . She agreed to waive any claim that Janet was not a parent."
"And it was your position," Barone said, "that if she wanted to take the position of challenging the presumption of parentage, it would not be through you?"
"That is correct," Lashman said.
"Even when there was no controlling law in Vermont on the issue?"
"There is a law in Vermont," Lashman said. "There's the civil union statue."
Several days later, Cohen ruled that Lisa was in contempt of his order to allow Janet visitation with Isabella. He didn't impose any penalties right away; Lisa knew it was only a matter of time before he would.
Despite the ruling, Lisa said, she felt calm. "I knew God would protect me," she said. "It's so amazing. God orchestrated all of this. I'm going to seek God's guidance and not man's guidance. I'm going to do what He wanted me to do. I'm not going to deviate from that, no matter what happens."
Lisa did, however, relent just once. In October 2004, Janet and her parents took Isabella for a six-hour visit at Ruth and Bucky's home. Isabella was 2 1/2. "We painted pumpkins," Janet recalled. It would be the last time Janet saw Isabella.
On October 15, Virginia's Judge Prosser issued a new volley in the war between the states. He entered a final order of parentage naming Lisa as Isabella's only parent. Prosser ruled that Lisa "solely has the legal rights, privileges, duties and obligations as parent hereby established for the health, safety and welfare" of Isabella. No other person "has any claims of parentage or visitation rights."
Janet appealed Prosser's decision to the Virginia Court of Appeals in early December. Her lawyers argued, in part, that long-established federal law gave jurisdiction to the first court to hear a custody case. That law -- the Parental Kidnapping Prevention Act -- was adopted in 1980 to prevent parents unhappy about a judge's decisions in one jurisdiction from moving to a new state and trying for a different legal outcome with a new judge. Two weeks later, Judge Cohen in Vermont ruled that he gave no credence to Prosser's order for just that reason. Lisa appealed that ruling to the Vermont Supreme Court. This past August, that court issued a unanimous decision upholding Cohen. The order allowing Janet visitation and holding Lisa in contempt would stand.
According to Lisa and documents she provided, some of her lawyers advised her to let Janet visit Isabella while they awaited the ruling from the Virginia Court of Appeals. If Lisa lost on appeal in Virginia, and Cohen's jurisdiction was upheld, then Cohen could punish her for defying him. He could give Isabella to Janet, Lisa recalled one lawyer telling her; he could send Lisa to prison.
Lisa refused, although she did allow Janet's parents to continue visiting Isabella for a few more months. "I don't see Janet as a parent, first and foremost," Lisa said. "Secondly, I don't want to expose Isabella to Janet's lifestyle. It goes against all my beliefs. I am raising Isabella to pattern herself after Christ. That's my job as a Christian mom. Homosexuality is a sin.
"I didn't give visitation, and God's protected me for two years," Lisa said. "He's protected Isabella, more importantly."
In January 2005, an attorney with Liberty Counsel, which had opened offices in Virginia, sent Lisa a letter. She could keep her local attorneys -- Barone in Vermont and Griffin in Virginia -- but the religious civil liberties organization wanted "to make clear our role as lead counsel," the letter said. Lisa signed a contract acknowledging that.
The next month, Ruth and Bucky sent a Valentine's Day package with cards and presents for Isabella and Lisa. Lisa sent back a letter: "I am writing to ask you to stop giving gifts to Isabella. Please also refrain from calling yourselves Mom-Mom and Pop-Pop. You are Janet's parents, therefore not Isabella's grandparents. Thank you for honoring my request."
Ruth and Bucky were bereft, they said. Opening their minds to their daughter entering into a civil union with a woman was easy compared with trying to stop being grandparents to a little girl they loved. "Dear Lisa, we will continue not to contact Isabella, but we will always love her and keep her in our hearts," Ruth and Bucky wrote in a Christmas card that year. "We wish only the best for you and Isabella."
Lisa telephoned not long afterward, Ruth said. "She said: 'I never told you that you can't come see her; I just said you couldn't be Mom-Mom and Pop-Pop,' " Ruth recalled.
"I would have caved," Ruth said in an interview. "I would have agreed to anything to see Isabella." But Bucky said he wouldn't visit under those conditions, she recalled. He said: " 'We are not Ruth and Bucky to Isabella. We are Mom-Mom and Pop-Pop.' "
Lisa asked Ruth if she could come dig up and transplant the apple tree they'd all planted together in honor of Isabella's birth. No, Ruth recalled telling her, sadly. Isabella's little tree had died.
"ROCK OF AGES CLEFT FOR ME," Lisa sang along with the rest of the congregation. "Let me hide myself in Thee."
It was two days before last Thanksgiving. Lisa and Isabella, now 4 1/2, were in the chapel of tiny Emmanuel Baptist Church in Winchester, where the sign outside said: Independent Fundamental.
Mother and daughter came here at least four times a week to sing and pray. On this night, the pastor handed Lisa a small envelope containing a $25 gift card to a local grocery store. Lisa tucked it inside a well-thumbed Bible, in which she had penciled notes next to verses she finds particularly meaningful.
Just a few days earlier, Cohen had held a contempt hearing in Vermont at which he fined Lisa $25 for each day she refused to let Janet see Isabella. The fines were retroactive and mounting. At that point, Lisa owed Janet more than $9,000. Lisa, who, having closed her home-based day-care center and who now earns a modest annual salary teaching at a preschool, already owed legal bills nearing $100,000 and had no way to pay. She said she wasn't worried.
"It's been amazing," Lisa said after the service, as she buckled Isabella into a car seat in the back of a battered Buick given to her by a couple from church. "God always provides."
Lisa pulled Isabella's pink dress coat tightly around her, then kissed her forehead. Isabella reached out to pat her mother's face. Finally, Lisa said, looking at Isabella, she knew what true love was. "For me, it's a very biblical love," she said. "It's wanting the best for the other person, regardless. It's wanting the highest good for the other person."
Back at home, Lisa put Isabella to sleep in a donated bed. Some women who'd heard about their case arranged to furnish their rental home as a surprise. "It was done anonymously," Lisa said. "Every single thing in Isabella's room was given: the bed, the bookshelves, everything, right down to a fishbowl."
Lisa had been waiting for nearly two years for the Virginia Court of Appeals to rule on her case. While waiting, she painted the walls of Isabella's bathroom with an elaborate mural that she found reassuring. Flowers and vines, birds and birdhouses cover all four walls, along with Biblical verses about having faith and knowing that God takes care of the birds in the field.
She keeps Judge Prosser's order naming her Isabella's sole parent tucked in her purse just in case deputies come to the door some day to try to take Isabella away. Yet Lisa doesn't worry as she waits, she said. "God has a plan," she said. "I may not know what it is, but I'm certain that He has one."
ON A DAY EARLY THIS WINTER, Janet sat at the kitchen table of the house in Vermont -- the one she used to share with Lisa and Isabella. It had been more than two years since Janet had seen Isabella.
"I don't think she knows I exist," Janet said. "I think if she saw me or saw photos, it would bring me back."
Janet has covered the kitchen table with photographs.
"That's Isabella going through my bag," Janet said. "She's got my checkbook there. My favorite color is red. So you'll see her in a lot of red."
"Here she is getting into the cats' toy basket.
"Here we're outside. She was always helping me in the garden. She's probably about a year old in this picture."
The phone in Janet's kitchen rang, but she ignored it.
"Here she's playing with the wooden trains," Janet said as she slid another photo of Isabella across the kitchen table. "She's so vibrant. I figure she's tall by now. Because she's going to be tall."
Janet's cellphone rang. She didn't pick up. She continued fingering old photos.
"Oh, these are hard to look at," Janet said. "When we were together, you can tell we were a happy family unit. The pictures show it. You can't deny it."
Janet's kitchen phone rang again. Again, it went unanswered.
"There is a part of me missing," Janet said. "I feel like my heart has been ripped out beating."
Janet put away the photos. She checked her phone messages.
A three-judge panel of the Virginia Court of Appeals had just ruled unanimously in Janet's favor, upholding Vermont's jurisdiction over the case. For now, at least, there could be no doubt that Janet was legally Isabella's parent.
LISA'S LAWYERS QUICKLY APPEALED, asking all 11 judges of the Virginia appeals court to rehear the matter. They are also preparing to ask the U.S. Supreme Court to consider the Vermont case.
In Vermont, Cohen is preparing to hold a hearing in April, after which he is expected to issue a final custody order in the case of Miller-Jenkins v. Miller-Jenkins. If the full Virginia Court of Appeals refuses to hear Lisa's new appeal, or hears it and rules against her, then any final custody or visitation order Cohen issues in Vermont will be enforceable in Virginia.
Ruth and Bucky have planted an evergreen on the very spot where the apple tree sapling once grew. At Christmas, they covered the tree with red ribbons and staked a star-shaped sign nearby, which reads "Isabella's Tree."
Gazing at it sometimes, Ruth is glad she isn't charged with deciding, Solomon-like, Isabella's fate. "Lisa hasn't endeared herself to me, but she's been a good mother," Ruth said. "I can't see ripping Isabella away from her life. It would be unfair. Isabella deserves to be in Janet's life, but not at the cost of taking her out of Lisa's life. She needs to be in both their lives. But how they work it out, the logistics of it, is a nightmare. I wouldn't even know how to do it. It's just such a shame that all this time has gone by."
But that's only part of the larger battle. Janet's lawyers are pondering how to win a legal victory without losing in the court of public opinion. News footage of deputies wresting a sobbing Isabella from her biological mother to give to her former lesbian partner would set the cause of gay rights back just as surely as any loss in court, advocates on both sides agree.
But Janet is less concerned about how mainstream America will react than she is about being reunited with Isabella. She's eager for Miller-Jenkins v. Miller-Jenkins to be over for another reason. Janet is engaged and needs the civil union to be dissolved before she can formalize her commitment with her new partner. "I have a great life," Janet said. "The only thing missing is my daughter, Isabella . . . I am ready at the drop of a pin to go get her and continue with our mother-daughter life together."
Janet is getting the house in Fair Haven ready for Isabella. She recently painted the bedroom next to hers a bright shade of leaf green that she imagines Isabella will like.
"When she left, she was a baby," Janet said. "Now she's going to be a little girl. I think she'll be here soon."
April Witt is a staff writer for the Magazine. She can be reached at email@example.com. She will be fielding questions and comments about this article Monday at noon .