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Vermont high
court rules in favor of child custody for lesbian

Vermont high
court rules in favor of child custody for lesbian


The Vermont supreme court said Friday that Vermont courts, not those in Virginia, have exclusive jurisdiction in a child custody battle between two women who were once joined in a civil union in Vermont.

The Vermont supreme court said Friday that Vermont courts, not those in Virginia, have exclusive jurisdiction in a battle between two women over custody of a child they had while they were in a relationship. The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's laws banning same-sex marriage controlled the case.

Vermont justice John Dooley wrote, however, that it is Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that is what governs their 2003 separation and subsequent child custody disagreement.

Vermont became the first state in the nation to recognize same-sex couples' relationships in 2000 when it enacted a civil union law. Whether such relationships would be recognized in other states has been a matter of litigation. "This is a straightforward interstate jurisdictional dispute over custody, and the governing law fully supports the Vermont court's decision to exercise jurisdiction and refuse to follow the conflicting Virginia visitation order," Dooley wrote.

The case involves Lisa Miller-Jenkins and Janet Miller-Jenkins, who were Virginia residents in 2000 when they traveled to Vermont to be joined in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination while the couple were together, and they eventually moved to Vermont.

About a year later Lisa Miller-Jenkins renounced her homosexuality, returned to Virginia, and denied Janet Miller-Jenkins's demands for visitation rights. They were granted a dissolution of their civil union, akin to divorce, and Lisa Miller-Jenkins filed for full custody.

A Vermont family court judge gave Janet Miller-Jenkins temporary visitation, prompting Lisa Miller-Jenkins to file one month later for full custody in Virginia courts. The Vermont supreme court ruled in favor of Janet Miller-Jenkins on three key issues: the visitation dispute, the Vermont court's refusal to abide by the Virginia court's orders, and a contempt order issued by the Vermont family court against Lisa Miller-Jenkins for failing to abide by its visitation order.

A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court. "It's a classic conflict between two states over same-sex unions," said Mathew Staver, founder and chairman of the anitgay Liberty Counsel, which is representing one of the women in the dispute. "The real question there is whether or not a state can have its own policy that does not accept same-sex unions or whether they have to accept the union of another state."

But an attorney who represents advocates of same-sex marriage said that might not necessarily be so. Jennifer Levi of Gay and Lesbian Advocates and Defenders said the Virginia court of appeals has stayed its ruling pending a decision by Vermont's courts, which now say the women were legally joined and were both legal parents. "Once that determination is made, that's where every court and federal law couldn't be clearer about the fact that Vermont has jurisdiction to resolve questions of custody and visitation of that case," Levi said. "So I think it's really premature to address where this will be resolved. I'm very optimistic that the Virginia court of appeals will rule consistent with the Vermont supreme court." (AP)

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