Vermont ruling awaited in same-sex custody battle

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Vermont ruling awaited in same-sex custody battle

By Calvin R. Trice, Times-Dispatch (Richmond, Virginia), June 1, 2006

The Virginia Court of Appeals is waiting for a ruling from the Vermont Supreme Court before deciding on a child-custody dispute between a former lesbian couple who were in a civil union.

The rare, multistate custody case involves whether Virginia should honor Vermont's law granting same-sex civil unions or whether Virginia's ban on recognizing such unions should prevail.

Some believe that competing rulings between two state-court systems could make the case a landmark in family law concerning same-sex couples.

In 2002, Lisa Miller gave birth to Isabella Miller-Jenkins, now 4, after artificial insemination while she was in a civil union with Janet Jenkins.

The couple subsequently broke up, and a Vermont Family Court judge handling the dissolution of their union ordered visitation rights for Jenkins while their custody case there was pending.

But Miller moved back to Virginia and took Isabella with her. In 2004, she filed for sole custody in Frederick County court, citing Virginia's new Affirmation of Marriage Act.

The Frederick judge granted her sole custody and declared Miller the only parent, citing the new law's prohibition against state institutions recognizing same-sex unions.

The Vermont judge ruled Miller in contempt for disobeying his visitation order. In November 2004, he ruled Jenkins a legal parent with visitation rights.

The women appealed the decisions in both states.

Lawyers representing the two argued their appeals a week apart in September -- at the Vermont Supreme Court and in the Court of Appeals of Virginia.

Joseph Price, who represents Jenkins, said yesterday that the parallel but opposite developments in the cases show why the Virginia judge was wrong to hear and decide the custody case.

Taking on a custody case being handled by another state goes against federal law intended to keep parents from "shopping" states for favorable rulings, Price said.

"There we were in front of two appellate courts on different days arguing exactly the same issues," he said.

He wants the Virginia appeals court to overturn the Frederick judge's decision and for the Vermont Supreme Court to uphold the Family Court judge's ruling deeming Jenkins a parent.

Mathew D. Staver, head of the conservative Liberty Counsel that is representing Miller, wants the Virginia appeals-court judges to uphold the Frederick judge's decision.

"I think Virginia got it right, and that will ultimately be the final ruling of the day after all of this is complete," he said.

His side asked the Vermont justices to overturn the Family Court ruling there. Miller's lawyers cite the state's marriage laws that prohibit couples who don't live in Vermont from wedding there to evade their home state's marriage law.

The same should apply to civil unions, Staver said.

In February, the Virginia appeals judges said they would await the Vermont Supreme Court ruling before deciding on the case here, lawyers for both sides said.

The case could find its way to the U.S. Supreme Court. Justices there have yet to take a same-sex custody case and declined to hear one last month.

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