Former lesbian pair argue over parental rights

RICHMOND

Virginia's Supreme Court on Thursday was the scene of the latest round of legal arguments in a battle over custody of a young girl by two women who jointly parented the child in a previous lesbian relationship.

Northern Virginia resident Lisa Miller, the biological mother of 6-year-old Isabella Miller-Jenkins, wants the state's high court to overturn an earlier ruling that affirmed Vermont court decisions that her former partner is entitled to parental rights.

"The whole issue here for me is that she is not the parent, plain and simple," Miller told reporters shortly after the Thursday morning hearing.

She and her former partner, Janet Jenkins, traveled from Virginia to Vermont in 2000 to be joined in a civil union ceremony after the state began permitting those arrangements. The couple returned to Virginia, and in 2002 Miller gave birth to a daughter conceived through artificial insemination. Later that year they moved to Vermont with the child; they separated in 2003.

Miller subsequently filed paperwork in a Vermont court to dissolve her civil union with Jenkins. Vermont courts have granted parental rights to Jenkins because she and Miller jointly raised the child while living in that state.

Attorneys for Miller say that Virginia law, which does not recognize civil unions, should take precedence in the case because both mother and child live here. They want the courts to cancel Jenkins' visitation rights.

"This so-called parental right in Vermont is based solely upon the Vermont civil union, which is not recognized in Virginia," said Mat Staver, chairman of Liberty Counsel, a group that specializes in conservative civil liberty issues.

Staver, who is also dean of the law school at Lynchburg's Liberty University, is one of Miller's lawyers.

While Virginia does not recognize civil unions - the legislature passed the Affirmation of Marriage Act in 2004 and voters two years later approved a constitutional amendment defining marriage as between one man and one woman - attorneys for Jenkins say that a federal statute trumps those laws.

"It's clear the Vermont court has jurisdiction, and it's up to the Vermont court to decide who should have custody and what the visitation arrangement should be," said ACLU of Virginia legal director Rebecca Glenberg, one of the lawyers representing Jenkins.

After the initial Vermont court ruling, Miller sought relief from Virginia courts.

A Frederick County Circuit Court judge in 2004 ruled that Miller is the sole parent of the child.

The Virginia Court of Appeals later ruled that the federal statute gives Vermont jurisdiction over the case, and that Virginia must honor decisions made by that state's courts.

When the Frederick County Circuit Court did not allow Jenkins to register the Vermont court order, the Virginia appellate court ordered the lower court to honor that order.

Miller's appeal of that appellate decision is now before the state Supreme Court.

"All of these questions were decided in the first appeal, and she doesn't get a chance to re-litigate them through the second appeal," Glenberg said. "Those decisions are the law of the case and have to be respected."

Miller, a Christian who now disavows homosexuality, said the legal wrangling and visitation arrangement are having a negative effect on her daughter. "It's done social and emotional harm," she said.

Julian Walker, (804) 687-1564, julian.walker@pilotonline.com