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Views: Civil Dis-Union
by Mubarak Dahir
2004-09-01

This article shared 2189 times since Wed Sep 1, 2004
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Though they were living in Northern Virginia at the time, Janet and Lisa Miller-Jenkins went to Vermont in December 2000 to be joined in a civil union ceremony. They wanted their relationship recognized in some legal way. At the time, Vermont was the only state that would offer them that.

Little did they know that four years later they would be the center not only of a volatile custody dispute, but also of a precedent-setting legal case that pits the legal proceedings of one state against another.

Soon after their union, the two women started talking about raising a family. After a lot of discussion, they opted for artificial insemination rather than adoption. Since Lisa was younger than Janet by four years, they decided she would carry their child.

Artificial insemination was a long and expensive process, a process Janet says she largely funded. But luckily, after three tries, Lisa finally became pregnant. The two women were ecstatic. Janet would lean in close to Lisa's protruding body, and talk and sing to their unborn child.

On April 16, 2002, Lisa gave birth to a little baby girl they named Isabella. Both women shared the work of taking care of their newborn baby. For Janet, it was a perfect set-up: She worked from home, so she could do her job and be with her child.

About two months after Isabella was born, Janet and Lisa decided to move away from Northern Virginia and take up residency in Vermont.

Janet says this move was no accident, no casual relocation. She says they moved specifically because they wanted to raise their little girl in a state that recognized their union, and recognized that they were both the parents of their little girl.

Janet says she did not legally adopt Isabella because, in Vermont, she didn't need to. She was already recognized as Isabella's parent by virtue of the civil union they had.

Janet and Lisa talked about having more children, and Lisa did become pregnant again in June 2003. But sadly, the pregnancy was soon lost in July. Janet now says that the loss depressed and changed Lisa.

Lisa left Vermont and went to see her family in Northern Virginia. Janet thought Lisa just needed a break from things. But by September 2003, Lisa had taken their daughter, Isabella, and moved back to Virginia.

Lisa made it clear she wanted out of the relationship. And according to the Washington Post, Lisa is now saying she is an 'ex-lesbian,' and is being advised by the Liberty Counsel, a right-wing, anti-gay group.

Initially, the women turned to the Vermont courts to dissolve their union, and to iron out the details of shared custody for Isabella.

In Vermont, both members of a civil union are recognized as equal parents to a child, and get equal consideration in custody. Indeed, a judge in a Rutland Family Court issued a temporary court order that sets out dates and times that Janet is supposed to be able to see Isabella.

Though Janet has made trips from Vermont down to Virginia, Janet says Lisa is making it very difficult for her to see Isabella. Indeed, Janet is worried that Lisa is trying to keep her from ever seeing her daughter again.

Even though a child custody case had already been initiated in Vermont, when Lisa got back to Virginia, she asked a Virginia court to get involved in the case, and to grant her sole custody of Isabella. Lisa and her lawyers are now arguing that Lisa is the biological parent to Isabella, and thus Janet has no rights or claims to motherhood.

Lisa and her lawyers are ignoring the proceedings of the family court in Vermont, and they asked the Virginia court to do the same.

Normally, one state does not interfere in a custody case that has already been initiated in another state. This understanding stems back to a 1970's federal law, which prohibits child custody cases from being switched around from state to state. The law was passed with the intention of preventing hostile parents from jumping around from state to state, moving their case until they find a state that gives them a more favorable ruling.

According to Lambda Legal Defense and Education Fund, which is advising Janet, the Vermont court did inform the Virginia court that jurisdiction in the child custody suit over Isabella had already been settled.

But the Virginia judge ignored that, pointing to a new anti-gay law in Virginia to rationalize getting involved. Virginia passed the Marriage Affirmation Act. This law not only bans recognition of same-sex marriages, it also bans recognition of civil unions performed elsewhere, or any other legal ties, such as domestic partnerships.

Vermont's jurisdiction in the custody battle stems from its role in dissolving Janet and Lisa's civil union, which was obtained legally there and recognized in Vermont.

In an astonishing disregard for Vermont law, Judge John Prosser of Virginia pointed to his own state's Marriage Affirmation Act, which allows the Virginia courts to ignore Lisa and Janet's civil union.

He claimed that since the Vermont custody case was based on dissolving Janet and Lisa's civil union, and since Virginia did not recognize that civil union, he did not have to recognize the Vermont custody proceedings.

Now, both women are asking for full custody of Isabella; Janet in Vermont, and Lisa in Virginia.

The Virginia court must not be allowed to have jurisdiction here. This is not because the Virginia court would be clearly less gay-friendly to lesbian mother Janet than the Vermont court would be.

But the Virginia judge has totally dismissed Vermont law. Virginia may make whatever laws it wishes, backward and antiquated as they might turn out to be.

But no state should have the right, or the power, to ignore legal proceedings in other states, simply because of prejudice. That would lead to a legal nightmare all across the country, not just with respect to gay and lesbian issues, but on all kinds of matters.

The Vermont courts should go ahead with the custody case.

And Janet Miller-Jenkins should not be denied the right to raise her daughter.


This article shared 2189 times since Wed Sep 1, 2004
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