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November 23, 2009

Vermont judge orders transfer of custody to non-bio mom of Isabella Miller-Jenkins

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.

Guest blogger Nancy Polikoff



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