A Winchester judge ruled yesterday that Virginia has jurisdiction over a complex custody battle between a toddler's biological mother and her former lesbian lover after the couple wed in Vermont and then split up. The decision dealt a blow to gay-rights advocates who said the case represented a chance for Virginia to recognize same-sex unions and the rights of non-biological parents.
Frederick County Circuit Court Judge John R. Prosser cited Virginia's Affirmation of Marriage Act, which specifically declares unions or domestic partnership contracts between members of the same sex void. He described the biological mother as the child's "sole parent" and said the laws of Vermont conflict with Virginia's and should have no bearing on custody.
The case centers on Lisa Miller and Janet Jenkins, who were joined in a civil union in Vermont in 2000, combining their lives and last names. In April 2002, Janet Miller-Jenkins cut the umbilical cord as Lisa Miller-Jenkins gave birth to a baby girl, conceived by artificial insemination, in Frederick County, Va. The couple moved to western Vermont to raise Isabella, who learned to call Lisa "Mommy" and Janet "Mama."
Last year, as their relationship dissolved, Lisa Miller-Jenkins moved with Isabella to Winchester to be closer to her family and filed court papers in Vermont essentially asking Janet Miller-Jenkins for a divorce. She also asked that Janet be awarded visitation and waived her right to challenge her former partner's claim to parentage.
Yesterday, hours before she appeared in the Winchester courtroom, Lisa Miller-Jenkins reversed course and testified by telephone in a Vermont courtroom, asking that her previous waiver be removed and that Janet Miller-Jenkins be denied parental rights, according to Lisa's attorney, Judy G. Barone.
"Because someone feels like a parent or acts like a parent doesn't mean they are," Barone said. "There's nothing in the civil union law that defines Janet as a parent."
Lawyers yesterday could not say what Prosser's decision meant for the custody case in Vermont. Both sides say the case tests the strength of same-sex unions and the future of their recognition. Of the approximately 7,000 same-sex unions formalized in Vermont, the vast majority have been from out of state.
"This is the first of many cases where Virginia's anti-gay, utterly unconstitutional marriage act will be used to deny people rights," said Joseph R. Price, a Washington attorney and chairman of Equality Virginia, a gay rights group. He is representing Janet Miller-Jenkins free of charge. "It comes as no surprise to many that Lisa thought she could do better in Virginia as far as getting rid of her gay partner's rights. Virginia could become the Las Vegas of gay divorces. You would simply pack up and move to Virginia, and your partner would have no rights, according to this Virginia law."
Opponents of gay marriage, though, say laws governing civil unions and same-sex marriage are confusing. In 2000, Vermont became the only state to grant civil unions, which offer couples the same rights as marriage but are not recognized in any other state. In May, Massachusetts legalized same-sex marriages for state residents only. This month, the California Supreme Court voided about 4,000 same-sex marriages performed in San Francisco this year.
"What we're talking about here is confusion in the law," said Stephen Cable, president of Vermont Renewal, a group that opposes same-sex marriage. "In Vermont, the judge still hasn't figured out how Janet could be a parent. Vermont's civil union law does not address parentage."
Attorneys for Lisa Miller-Jenkins, who calls herself a "former lesbian," say she does not oppose visitation for Janet Miller-Jenkins, but she does not want her to be granted the same rights as a parent.
"Vermont's passage of this law has exported much legal chaos," Barone said. "It isn't about people's politics. It's about the law in place. Nobody is being in any way discriminatory. This isn't a political battle, certainly not in my client's eyes."
But gay-rights lawyers and advocacy groups have flocked to represent Janet Miller-Jenkins, saying that if the legal system is going to recognize civil unions, it also needs to deal with the consequences of their demise.
"This is the child's home up here," said Theodore A. Parisi Jr., one of Janet's attorneys in Vermont. "Isabella has a room. Her toys are still here. She's familiar with the surroundings. It would be no different than if a child went to live with her father."
Janet's attorneys criticized the Virginia judge for not taking into account that another jurisdiction has commenced custody proceedings and planned to appeal.
Staff writer Jonathan Finer contributed to this report.