Miller-Jenkins v. Miller-Jenkins, and Vermont versus Virginia:
How One Contested Custody Case Illustrates the Perils of Non-Uniform State Marriage and Parentage Laws

After nearly three years of litigation, Janet Miller-Jenkins has won the right to visitation with "IMJ," the three-year-old girl born to her former same-sex partner, Lisa Miller-Jenkins. This case was hard-fought, pitting mother against mother, state against state, and advocacy group against advocacy group.

But in the end, it was a surprisingly ordinary struggle: Once-committed partners, now alienated from one another, fought to spend time with a child they both love. If it were not for the same-sex nature of the partnership, the case would be an all-too-normal addition to a family court's heartbreaking docket.

The Rise and Fall of the Miller-Jenkins Household

Beginning in the late 1990s, Lisa and Janet Miller-Jenkins were involved in a committed relationship. They lived together in Virginia; traveled to Vermont in December 2000 to enter into a civil union; and returned to Virginia. In Virginia, after the ceremony, Lisa was inseminated with sperm from an anonymous donor, and in April 2002, she gave birth to IMJ. Janet was involved in all aspects of IMJ's arrival: To give a few examples, she participated in selecting the sperm donor and was present in the delivery room.

Shortly after IMJ was born, the couple moved to Vermont, where they resided for thirteen months before ending their relationship. Lisa told reporters later that she "left the homosexual lifestyle and drew closer to God."

In September 2003, Lisa returned to Virginia with IMJ, while Janet remained in Vermont. Eventually, Lisa filed a petition to dissolve the couple's civil union in Vermont family court, listing IMJ as the "biological or adoptive child[] of the civil union." The Vermont court found both Lisa and Janet to be legal parents, and awarded Lisa temporary custody, and Janet visitation rights (consisting of both in-person and telephone contact with IMJ). But Lisa permitted Janet to visit with IMJ only once following this ruling, in June 2004.

Shortly after that first visit, Lisa filed a petition in a Virginia court seeking a ruling on IMJ's parentage, one that would not recognize Janet as a legal parent. Since then, courts in Virginia and Vermont have issued a series of conflicting rulings about IMJ's parentage.

Virginia and Vermont: Two Ends of the Same-Sex Relationship Spectrum

Unfortunately, the custody dispute over IMJ has morphed into a fight about gay parenting. Lisa is represented by Liberty Counsel, a public interest law firm that defends "traditional" marriage. Janet is represented by Gay and Lesbian Advocates and Defenders (GLAD), the non-profit group that successfully litigated for same-sex marriage in Massachusetts. In addition, the case pits Virginia, perhaps the most anti-same-sex marriage jurisdiction in the nation, against Vermont, among the most favorable for same-sex couples.

At the time Lisa and Janet entered into their civil union, Vermont was the only state in the country that permitted same-sex couples to enter into a marriage-equivalent status, and thousands of non-resident couples have entered into civil unions there. Since then, the landscape has changed, to provide somewhat greater opportunities for same-sex couples to gain legal recognition for their relationships.

Massachusetts began permitting same-sex couples to marry in 2004, but requires that the partners both be Massachusetts residents or -- for reasons I explained in a previous column -- residents of Rhode Island. Connecticut permits couples to enter into civil unions, and California permits them to enter into domestic partnerships - both of which are marriage-equivalent statuses in most material respects. Soon, New Jersey will begin permitting same-sex couples to enter into either civil unions or marriages - depending on the way in which the New Jersey legislature decides to comply with a recent ruling of the state's highest court. (Linda McClain and I wrote about that ruling, Lewis v. Harris, in a prior column.)

Virginia, on the other hand, like most other states in the union, has taken steps in the other direction. When Lisa and Janet entered into their civil union, Virginia had already adopted a so-called "mini-DOMA" - that is, a law, patterned after the federal Defense of Marriage Act (DOMA), which restricts marriage in Virginia to opposite-sex couples and refuses recognition to same-sex marriages from other states. More than forty states have similar laws on the books or embodied in their state constitutions.

Then, in 2004, Virginia law became even more hostile to same-sex unions. That year, the legislature adopted the Marriage Affirmation Act. The Act bars the establishment or recognition in Virginia not only of same-sex marriage, but also of a "civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited."

Virginia or Vermont: Which Court Gets to Decide?

There are big-picture questions lurking here: Should Vermont's favorable treatment of same-sex couples trump Virginia's miserly treatment of them? Should an ex-lesbian be able to "protect" her child from a lesbian who was once her co-parent? Do parental rights flow from marital status for same-sex couples, just as they often do for heterosexual couples?

But what the case came down to, correctly, was a much narrower question: Which state court has jurisdiction over custody of, and visitation with, IMJ? Both states finally agreed that it's Vermont that has the right to decide, as the Vermont decision and the Virginia decision show.

In the U.S, interstate jurisdictional custody and visitation disputes are fueled by a basic rule of domestic relations law: that law is controlled, for the most part, by individual states. Thus, a court in one state may be governed by different standards for determining parentage or awarding custody, than a court in another state.

However, to avoid competing and conflicting rulings, and the possibility of continuous relitigation of custody matters, Congress has adopted a series of federal laws to ensure that courts do, in fact, respect the rulings of courts from other states. The Parental Kidnapping Prevention Act (PKPA) is one such law: It aims to guide the determination of when one state must give "full faith and credit to" (that is, abide by) a child-custody determination of another state.

Here, Vermont was entitled to exercise jurisdiction (and Virginia had to give Vermont's rulings "full faith and credit") consistent with the PKPA, due to a number of factors: Vermont had jurisdiction under Vermont law; Vermont had been IMJ's home state within six months before the custody and parentage proceeding was commenced; the child was removed from Vermont by one of the litigants, and the other litigant is still a Vermont resident. Under the PKPA, that gave Vermont courts the right to issue a binding ruling as to the custody and parentage of IMJ.

Though this ruling, issued in August, was a clear victory for Janet, it was perhaps only a symbolic one until Virginia's appellate court chimed in with its agreement last month. That court, too, concluded that the PKPA barred the Virginia court from exercising jurisdiction over the battle for IMJ. Instead, the court ruled, the Virginia trial court should have given full faith and credit to the Vermont family court's ruling.

With this ruling now in hand, Janet Miller-Jenkins should be able to establish contact with IMJ, and Lisa Miller-Jenkins must face contempt charges for failing to honor the visitation order that was put in place in 2004. While hotly contested custody cases rarely have a truly happy ending, this is at least a fair one.