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Published
01/07/2010
by Dana Rudolph
Lisa
Miller, right, has apparently disappeared with her daughter Isabella,
as she
failed to turn over custody of the girl to her former partner, Janet Jenkins
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A long-running and complex child custody suit that has played out in
courts in Vermont and Virginia turned mysterious over the holiday weekend, when
the ex-lesbian mother in the case failed to transfer custody of the young girl
to her former partner.
Janet Jenkins, of Vermont, who is the former partner and the girl's
other mother, notified police in Fairfax, Virginia, that Lisa Miller did not
appear at the designated transfer location in Virginia on January 1, as ordered
by a family court in Rutland, Vermont.
Attorneys for Miller did not return this reporter's call but have told
other media outlets that Miller has not been in touch with them for more than a
month. Whereabouts of 7-year-old Isabella are apparently unknown to anyone
other than Miller, who has also disappeared.
The case underscores the conflicts in state laws that sometimes apply to
same-sex parents.
Attorneys for Jenkins, the non-biological mother, filed an emergency
motion against Miller in Vermont for contempt of court and for a warrant
ordering law enforcement to find Miller. Jenkins's attorneys are also seeking
an expedited enforcement order in Virginia and Jenkins filed a missing persons
report in Virginia last week. These new orders would reinforce the urgency that
the police find Miller.
Miller has been repeatedly held in contempt in the dispute in both
states, for failing to enable court-ordered visitation of the child by Jenkins.
The case has been tied up in courts in both states for years.
After warning Miller last January that blocking visitation could
jeopardize her custody of her daughter, Judge William Cohen of the Rutland
Family Court transferred sole custody of Isabella to Jenkins in November. Cohen
indicated that he believed giving Jenkins custody would be the only way the
girl would continue to have contact with both parents.
Cohen's ruling came after years of court battles. The couple had a civil
union in Vermont in 2000, and Miller gave birth to their daughter in 2002. The
family lived in Vermont until the women's relationship ended, whereupon Miller
moved to Virginia with the child. Shortly afterwards, Miller began to identify
as a born-again Christian and said she was no longer a lesbian. The
conservative Christian legal group Liberty Counsel provides legal
representation to Miller.
Initially, Miller asked the Rutland Family Court to dissolve the civil
union and determine custody. The court granted Miller custody but ordered that
Jenkins should have visitation rights. Miller tried to have a Virginia court
rule that, because of its ban on legal recognition for same-sex couples, she
was the child's sole legal parent. A Virginia district court agreed with
Miller, but after a series of appeals, both the Virginia Supreme Court and the
Vermont Supreme Court upheld the Vermont family court's ruling and Vermont's
jurisdiction in the case. Miller appealed the decisions to the U.S. Supreme
Court, which refused to hear them.
There is still an appeal pending in Virginia, in which Liberty Counsel
argues the state is not required to enforce the Vermont order affirming
Jenkins's parentage. To do so, it says, would violate Virginia public policy. The
Juvenile and Domestic Relations District Court in Bedford, Virginia, however,
issued an order Monday for the custody transfer to be enforced.
Jennifer Levi, senior attorney for Gay and Lesbian Advocates and
Defenders, which has been representing Jenkins for all appellate matters in
Vermont, explained, "Neither the family court nor the local law
enforcement are at all questioning the enforcement in Virginia of the Vermont
court order [to transfer custody]. ... They recognize their obligation to
assist."
Levi said she cannot speculate on what Miller might do next. If Miller
tries to leave Virginia, however, Levi does not believe she would find a better
reception elsewhere.
"I don't think she has any legal protections available to her at
this point," she said. "It's just her efforts to evade the law and
the potential success of that for her."
Greg Nevins, senior supervising staff attorney for Lambda Legal Defense
and Education Fund, who also represents Jenkins, agreed.
"Courts have been down these roads a whole bunch of times with
different-sex parents and they've wisely figured out that there's not an
exception that says, 'Oh, child-snatching and forum shopping is a good thing if
same-sex parents are involved.' They recognize that the rules that were
designed to protect children generally apply no matter who the parents
are."
LGBT family law expert Nancy Polikoff, professor of law at American
University in Washington, D.C., noted that because the child must attend
school, Miller may find it hard to hide with her for long.
"She would have to change her name and the child's name, and she
would have to break off contact with her other family members and friends. None
of that would be in the child's best interests," Polikoff said.
Polikoff said that Virginia has shown it is willing to enforce other
states' proper custody orders, even though its own laws are hostile to same-sex
couples. It did so not only in the Miller-Jenkins case but also in the November
case of a woman trying to deny custody to the non-biological father in a gay
male couple for whom she had been a surrogate. A North Carolina court had
issued the custody order before the men moved to Virginia.
GLAD advises on its Web site that non-biological parents should still
secure formal adoption of their children even in states where same-sex couples
can marry or have civil unions, because other states might not honor parentage
that is based on the adults' relationship.
Liberty Counsel has, nevertheless, tried unsuccessfully to use variation
in state laws to deny non-biological parents their rights even in the face of
legal adoption. Last May, a Florida appeals court ruled against a Liberty
Counsel client, a biological mother, saying that despite Florida's ban on
adoption by gay men and lesbians, the state must recognize the second-parent
adoption done by the non-biological mother when the couple lived in Washington.
Conservative legal organizations such as Liberty Counsel and the
Alliance Defense Fund have also been involved in a number of single-state
lesbian custody cases, each time backing the biological mother or sole legal
adoptive mother against the mother who has no formal legal rights to the child.
They had two successes in Utah, last year in a lower court and in 2007 in the
Utah Supreme Court, but lost last year in a California appeals court and the
Montana Supreme Court. In each case, as in Miller-Jenkins, the biological
mother said she was no longer a lesbian or was now in an opposite-sex
relationship.
"I think what stands out in this case," said GLAD's Levi about
the Miller-Jenkins dispute, "is the lengths to which Lisa Miller will go
to avoid the law. I think she has really put herself in a position of
potentially having to go to jail in order to be made to comply with a court
order."
The legal matters may continue to be hashed out in court, but they have
a very personal impact. Through GLAD and Lambda, Jenkins issued a statement
Monday saying she was very worried about her daughter.
"I do not know where she is or whether she is okay. ... My goal has
never been to separate [our daughter] from Lisa. I just want [our child] to
know and love both of her parents. I just want to be with her, like any
parent."