High court won’t hear lesbian custody dispute

Posted on 03 May 2007 at 8:15pm
By Ann Rostow Contributing Writer

Decision is no surprise since panels in Virginia, Vermont aren’t through hashing out years-long battle over girl, now 5



Janet Jenkins (left), Laura Miller (right)

The U.S. Supreme Court declined Monday, April 30, to intervene in the closely watched child custody case between Lisa Miller of Virginia and her former partner, Janet Jenkins of Vermont.

The two women have been immersed in a years-long battle over whether Janet will win partial custody of their daughter Isabella, who is now 5.

Lawyers on both sides were not surprised that the high court sidestepped the case: The back-and-forth litigation doesn’t simply pit Jenkins against Miller.

It also pits the gay-friendly laws of Vermont against the harsh policies of Virginia, home to some of the most inhospitable statutes in the country for same-sex families.

And as a practical matter, the litigation between the states is not over, and the justices were not expected to jump into the morass until both state high courts have had their say.

The heart of the legal case centers less on gay rights, and more on the issue of jurisdiction.

Once a state court begins handling a family dispute, federal law prohibits a disgruntled parent from hopping over the border and filing legal papers in a state that might offer better odds. Whether feuding parents are gay or straight, the law is crystal clear on this issue, which is why the Vermont/Virginia case made headlines in the first place.

Indeed, after a Vermont court began the process of severing the women’s civil union and determining custody and visitation, Lisa Miller did exactly that. She initiated a new case in Virginia, where a conservative judge ruled that Vermont’s court decisions carried no weight under Virginia’s strict laws against recognizing same-sex couples.

As the biological mother, and by coincidence, a recently born-again Christian, Miller was given sole parental rights by the Virginia court.

Vermont promptly held Miller in contempt, and she appealed that issue all the way to the Vermont Supreme Court, which ruled in Jenkins’ favor last year. It is this ruling that was appealed to the U.S. Supreme Court, and it was this Vermont opinion that the court ducked on Monday.

Meanwhile back in Virginia, Jenkins had challenged the ruling that dissolved her parental rights. Late last year, a three-judge panel of the Virginia Court of Appeals agreed that Vermont maintained jurisdiction over the case, and that Virginia’s anti-gay laws were beside the point. Sure enough, Miller has appealed that verdict to the Virginia Supreme Court, which has yet to hear the case.

According to Lambda Legal Defense, which is handling the Virginia side of Jenkins’ litigation, Miller’s attorneys missed the filing date to appeal the panel ruling to the Virginia justices. The justices are now considering whether to forgive the technical error.

If they give Miller’s lawyers the benefit of the doubt, they will then decide whether to hear the case.

No wonder the U.S. Supreme Court was hesitant to jump in at this stage.

Although many observers speculated that this case would wind up in the Supreme Court, it’s unlikely to attract high court attention unless the two state courts disagree. If Virginia’s high court accepts review, and if Virginia agrees that Vermont courts control the case, the legal issues would be resolved and there would be little reason for the high court to accept an appeal.

If, on the other hand, Virginia’s justices reverse their lower court, the stage would be set for a major constitutional showdown.

According to an article in the Rutland Herald, lawyer Mat Staver of the conservative Liberty Counsel is not yet finished with the Vermont side of the case. Staver, who represents Miller, says he will appeal the final order of the Rutland Family Court once the formal documents are signed, sealed and delivered.

And the merry-go-round will take another spin.

Finally, in a small sign of sanity, Jenkins’ Vermont-based lawyers, the Gay and Lesbian Advocates and Defenders, say Miller initiated a brief visit recently, allowing Jenkins to spend some time with Isabella in a Virginia shopping mall about two weeks ago.

Perhaps through sheer emotional exhaustion, Miller and Jenkins will settle this case before the courts are done.

This article appeared in the Dallas Voice print edition May 4, 2007

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