A Vermont judge last week ruled that the biological mother and her former partner are both legal parents of a toddler who became the subject of a custody battle after the women ended their civil union. Family court judge William Cohen said that Janet Miller-Jenkins of Fair Haven is a parent to 2-year-old Isabella, a child born to Lisa Miller-Jenkins. The decision is the latest twist in the closely watched dispute that's produced conflicting rulings in two states. The women were a couple in Virginia when they decided four years ago to enter into a civil union in Vermont. They then went back to Virginia, where Lisa Miller-Jenkins conceived a child through artificial insemination. Isabella was born in Virginia in April 2002. The two women later moved to Vermont before ending their civil union. Lisa Miller-Jenkins took the child and moved back to Virginia, where civil unions are not recognized, and sued for full custody.
Attorneys for Lisa Miller-Jenkins had contested whether Janet Miller-Jenkins was the child's parent. A Frederick County, Va., judge had granted Lisa Miller-Jenkins, 35, full custody of the child, ruling that Janet Miller-Jenkins, 39, was no more than a friend to the child. Cohen reached a different conclusion under Vermont law. "Parties to a civil union who use artificial insemination to conceive a child can be treated no differently than a husband and wife, who, unable to conceive a child biologically, choose to conceive a child by inseminating the wife with the sperm of an anonymous donor," Cohen wrote. "Under Lisa's interpretation of the law, because there is no established precedent in Vermont, the husband would be no more than a mere stepparent and would be required to adopt the child in order to be considered a parent in the eyes of the law. This argument is without merit."
The judge ruled the case can now be set for a final hearing in family court to determine issues such as custody and child support. The case has attracted national media attention, highlighting the fate of children in relationships sanctioned in one state but not in others. Michael Mello, a professor at Vermont Law School, said Friday that the ruling is believed to be the first time in a civil union custody dispute that a Vermont judge has granted a person rights as a parent even though she is not the biological parent. "It's a landmark decision, and it's a no-brainer under Vermont law," said Mello. "It shouldn't be controversial, and the only reason it is, is because it involves a civil union."