Lesbian child custody dispute sets national precedent

"A woman who helped raise a child with her female partner in Vermont before the pair split can visit the girl in Virginia even though that state doesn't recognize same-sex unions, a court ruled Friday. Virginia's Supreme Court ruled that Janet Jenkins and Lisa Miller's civil union in 2000 gave Vermont, and its law on same-sex unions, jurisdiction over their subsequent custody and visitation disputes.

Miller moved to Virginia with the child in 2003, and a Vermont court granted Jenkins visitation rights. But Miller took the case to a Virginia court, which ruled that Jenkins had no such rights there. The case was considered by legal experts to be the first conflict between two state courts over a major legal question arising from same-sex unions.

Jenkins' attorney, Joseph Price of the Washington law firm Arent Fox, said Friday's ruling "just affirms the old principle that when these kinds of custody and visitation disputes begin in one state, that's where they should remain. You can't shop them around to another state," Price said. "Virginia really had no choice but to enforce judgments and judicial orders from Vermont."

Vermont is one of the few states that allow same-sex partners to enter into a civil union. Two years after Vermont recognized Miller and Jenkins' relationship, Miller gave birth to a daughter, Isabella, conceived through artificial insemination. The relationship deteriorated, and Miller and the baby moved to Virginia. A Vermont court later granted Miller a dissolution of the civil union and granted custody of the child to her and visitation rights to Jenkins.

Miller then asked the courts in Virginia -- which does not recognize same-sex unions or marriages -- to take jurisdiction of the dispute. A Virginia state judge eventually ruled that Jenkins had no "parentage or visitation rights."

The Virginia high court ruling Friday returned the case to Vermont's control, meaning Jenkins can visit the girl, who is now 6. Miller's attorney, Mathew Staver, said he was "disappointed the state sidestepped the larger legal questions."

"This case shows that one state is not an island in the same-sex marriage dispute, and underscores having state laws that protect traditional one-man, one-woman marriages," said Staver, chairman of Liberty Counsel, a law firm that fights on behalf of what it calls "traditional families."

Miller said in 2005 that she was doing what was best for her daughter and was no longer a lesbian.

"I am Isabella's mom. I did conceive her; I birthed her," she said. "I'm raising her. And in my opinion, Isabella needs to stay with me 100 percent of the time, because I am the only person that she identifies as a mom."

Miller lives with Isabella in Winchester, Virginia.

Jenkins did not offer an immediate reaction to the ruling but said in 2005 that she was only fighting for her rights as a parent.

"Justice will be served for Isabella," she said. "I believe that. And I'll do whatever it takes. I'll be with her for as long as I can, or I'll be without her for as long as I have to, but I'm her mom. She's born here [in Vermont]. She's always here."

Price said Jenkins, who lives in Fair Haven, Vermont, was supposed to visit Isabella last weekend, but Miller didn't appear with the girl. Friday's ruling comes a week after the California Supreme Court's refusal to delay its recent decision legalizing same-sex marriage in the state.

Massachusetts also allows same-sex marriages; Vermont and three other states permit civil unions, and 12 other states give gay and lesbian couples some legal rights.

Virginia amended its constitution in 2007 to decree that marriage is defined as a union between one man and one woman."