Psychiatr News September 1, 2006
Volume 41, Number 17, page 8
© 2006 American Psychiatric Association
Court Treads New Ground In Child-Custody Fight
Aaron Levin
Vermont rules in favor of visitation rights after a lesbian couple's civil
union is dissolved.
One year ago, Psychiatric News reported on a most contemporary
child custody case, pitting two halves of a fractured lesbian civil
union—and two states—against each other. Now the Vermont Supreme
Court has ruled that Vermont and not Virginia holds exclusive jurisdiction in
the case.
The custodial and biological mother, Lisa Miller-Jenkins, now lives in
Virginia, while her former partner, Janet Miller-Jenkins, lives in Vermont,
where civil unions are legal. They joined there in a civil union in 2000, and
Lisa filed in Vermont to dissolve the union in November 2003. Vermont
recognizes the parental rights of Janet Miller-Jenkins to the child, Isabella,
now 4 years old, and its Supreme Court has ruled in favor of her right to see
the girl. It also reaffirmed a Vermont Family Court contempt order against
Lisa Miller-Jenkins for failing to comply with its visitation order. The
Vermont Psychiatric Association filed an amicus brief in the case, supporting
Janet Miller-Jenkins's right to parental visitation.
Action in the case is expected to move to a three-judge panel of the
Virginia Court of Appeals, which stayed an earlier ruling in the case pending
the Vermont court's ruling. If Lisa Miller-Jenkins files an appeal, which is
highly likely, the Virginia court will have to uphold or reject a lower
court's decision that Virginia's Marriage Affirmation Act supersedes Vermont
law. Lisa Miller-Jenkins's attorneys also cited the federal Defense of
Marriage Act on their client's behalf.
Were this a case of battling heterosexual parents, there would be little to
argue about, said Cheryl Lynn Hepfer, J.D., of Rockville, Md., president of
the American Academy of Matrimonial Lawyers. Federal laws in place for two
decades say that the state where parties first file holds jurisdiction, she
said.
"Anything else would be truly contrary to general law in custody
cases," she said. "Today lawyers advise parents not to take the
child to another state in the hopes of finding a more favorable court. The
consequence is substantial and not in the best interests of the
child."
A reversal of such general law would have the effect of overturning
standards for all custody proceedings, not just those involving same-sex
couples, said Hepfer.
Janet Miller-Jenkins's legal argument would appear to also have the backing
of other legal precedents, said attorney Joseph Price, J.D., her pro bono
Virginia lawyer. "The rule is to apply the most specific and most recent
legislation, and since the Parental Kidnapping Protection Act was amended more
recently than the federal Defense of Marriage Act, I would expect a favorable
outcome."
However, with an appeal in Virginia by Lisa Miller-Jenkins likely, said
Price, a final ruling may not come soon. Delays may have more than legal
ramifications if Janet Miller-Jenkins cannot see her child for several years,
he added. He cited another case in which so much time went by during appeals
that the second parent was barred from seeing the child on the grounds that
she was now a stranger.
Letting that happen, he said, "would amount to allowing Lisa to get
away with kidnapping."
The Vermont Supreme Court decision in Miller-Jenkins v.
Miller-Jenkins [2006 VT 78, Nos. 2004-443 & 2005-030] is posted at
<http://dol.state.vt.us/gopher_root3/supct/current/2004-443.op>.
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