Gay & Lesbian Advocates & Defenders

GLAD fights for lesbian’s parental rights

GLAD is currently serving as co-counsel on behalf of Janet Miller-Jenkins, a Vermont woman seeking visitation with her daughter. Janet is seeking visitation as part of the dissolution of her civil union sought by her former partner and the little girl's biological mother, Lisa Miller-Jenkins.

When Lisa filed the dissolution action in November 2003, the Vermont Family Court granted Janet visitation rights with her two-year-old daughter while the case proceeded. Lisa, having moved to Virginia with the child, responded by filing a new action in that state to declare herself the only legal parent and to block Janet’s visitation.

Lisa filed the Virginia action on the day Virginia's anti-gay Marriage Affirmation Act went into effect, using funds from the Center for American Cultural Renewal - a group working to repeal Vermont’s civil union legislation - to support her legal efforts.

The dispute has led to a jurisdictional squabble between the Vermont and Virginia courts, effectively pitting Virginia’s Marriage Affirmation Act against Vermont’s civil union law. GLAD represents Janet in Vermont, along with local practitioner Theodore Parisi, while Lambda Legal is representing Janet in Virginia, along with attorney Joseph Price.

“What this case boils down to is this little girl's right to retain her relationship with her mother Janet”, said GLAD staff attorney Karen L. Loewy. “This is a child born during the party’s civil union. Under Vermont law, Janet is the child’s parent. Lisa does not have the right to deny her access to the little girl they jointly brought into the world.”

Despite the simplicity of this core issue, the Virginia court and Lisa's lawyers (from Liberty Counsel, one of the groups that attempted to undermine the Goodridge decision in Massachusetts) are determined to create specious complications. Under both federal and state law, when the court of one state has been validly presented with issues relating to child custody, that court keeps jurisdiction until it voluntarily releases the case. Despite the fact that the Vermont court has retained jurisdiction over the issue of both Janet and Lisa's parental rights and responsibilities and has never relinquished jurisdiction, the Virgina court initially ruled that Lisa is the sole parent, and ignored the Vermont court's visitation order, on the basis of Virginia's stated policy of discrimination against civil unions.

Because Lisa failed to comply with the Vermont Family Court's visitation order, the Vermont court held Lisa in contempt. Further, the Vermont court issued a ruling declaring Janet to be the girl's legal parent, as the child was born while Janet and Lisa were legally joined in a civil union. Finally, the court rejected an attempt by Lisa to have the Vermont courts recognize and enforce the Virginia ruling declaring Lisa to be the sole legal parent. Lisa petitioned the Vermont Supreme Court which, in September, 2006 - in a tremendous victory for Janet and GLAD - upheld all three of these rulings. Furthermore, the Virginia Appellate Court has since decided that Virginia had no jurisdiction to entertain Lisa's suit to be declared IMJ's sole parent, and has ordered the Virginia Courts to comply with the Vermont visitation order. Lisa’s petition for review by the US Supreme Court was denied on April 30, 2007; she is currently seeking review in the Virginia Supreme Court.

While this case is one of the first to address what happens when a family granted a formal legal status in one state encounters the discriminatory policies of another, it is by no means likely to be the last. Yet it seems that courts will have little patience for parents who attempt an end-run around that status. As Judge Cohen of the Vermont Family Court stated in issuing the contempt ruling, "The judicial system as a whole simply cannot allow parties to try to take advantage of legal and cultural differences which may make one state favor the position of a particular party over another."

GLAD fights for lesbian’s parental rights

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