Vermont, Virginia
courts to hear competing arguments in lesbian custody
case

Battles over the custody of children between estranged spouses are nothing new. But this one involves a child born to a lesbian couple in a since-dissolved civil union. And the case might end up in the U.S. Supreme Court because it produced dueling court rulings in Vermont, the first state to legally recognize same-sex relationships, and Virginia, which has a law saying neither same-sex marriages nor civil unions carry the force of law in that state. The case comes up for argument before the Vermont supreme court on Wednesday and before the Virginia court of appeals a week later. Both supporters and detractors of same-sex marriage and civil unions say whatever the outcome, it may become a landmark in the debate over what laws should govern same-sex relationships and the children born to them. "This case has significant implications for a number of reasons," said Mathew Staver, a lawyer with Florida-based Liberty Counsel, which opposes same-sex unions. He said there have been other cases in which out-of-state courts have been asked to grant dissolution of Vermont civil unions and refused because their states don't honor such unions. In this case, however, "you have two state laws clashing for the very first time." If the fight goes to the U.S. Supreme Court, "this would have major precedential value," Staver said. Jennifer Levi, a lawyer with Gay and Lesbian Advocates and Defenders who will represent Janet Jenkins at Wednesday's hearing, called that kind of speculation premature. She hopes that both courts will allow her client visitation with the 3-year-old girl at the center of the controversy. Jenkins, now 40, and Lisa Miller, 36, both Virginia natives, fell in love in their home state, came to Vermont in 2001 just long enough to get a civil union, and returned home. In Virginia, Miller got pregnant by artificial insemination, and she gave birth in April 2002 to a girl they named Isabella. They later returned to Vermont, where they lived for a little more than a year before breaking up. In filing for dissolution, Miller filled out paperwork indicating that Isabella was the child of the civil union, a fact that Jenkins's legal team is using to argue that under Vermont law Jenkins is a parent of Isabella. Miller later changed her mind and asked Rutland family court judge William Cohen to find that she was Isabella's sole parent. The judge denied her request and granted Jenkins visitation, even though she never formally adopted Isabella. Miller appealed to the Vermont supreme court. She also moved back to Virginia and won a declaration in that state's courts that she was Isabella's sole parent, with no obligation to Jenkins for visitation or anything else. Federal law, particularly the Parental Kidnapping Prevention Act, is set up to block a parent unhappy with one state's custody order from taking a child to another state's court in search of a more favorable outcome. It says the second state must honor the first state's ruling on custody and visitation, and Jenkins's lawyers are relying on this law in arguing that Virginia should let the Vermont ruling stand. Miller said she does not dwell on the outcome. "I don't think about it one way or another," she said. "It's in God's hands." (AP)