Judge Refuses Arrest Warrant in Lesbian Custody Case

by Kilian Melloy

EDGE Staff Reporter

Friday February 19, 2010

It would be a sad, but too-common story of acrimony between estranged spouses and suspected parental abduction, if not for the genders of the parties involved: both estranged parents are women. But because Janet Jenkins and Lisa Miller used to be a same-sex couple, and because the question of Jenkins' parental relationship to Miller's biological daughter involved supreme court decisions in two states, the case has taken on the trappings of a culture war epic.

The right's usual rhetoric about "law" has been put aside for now, in the wake of Miller having disappeared with daughter Isabella, 7, after Miller failed to appear in court. Because Miller did not show up for the appearance at which a Vermont judge ordered custody to be transferred, a Virginia judge has declined to issue an arrest warrant for Miller, saying that it cannot be proven that Miller knows about the Vermont court's ruling, anti-gay religious site LifeSiteNews reported in a Feb. 18 article titled, "Lisa Miller Safe for Now."

The Vermont family court's decision awarding custody of the couple's daughter, Isabella, to formerly non-custodial parent Jenkins, after Miller repeatedly refused to abide by the visitation schedule set out by the courts, is unremarkable in itself. But Miller has become a poster child for the anti-gay right, claiming to have walked away from her "former lesbian lifestyle" and returned to her religious roots. As the courts pressed for Miller to comply with their instructions regarding visitation and Jenkins' parental privileges, conservative media began building the case up into a parable about judicial intrusion and parental rights--and to treat the story as a case in point for the argument that gays and lesbians are dangerous to heterosexual families.

But the case is essentially the same as similar custody cases involving heterosexual parents. Lawyer and family court expert Kurt Hughes of Burlington, Vermont, told local news station WCAX that the outcome--in which the court reassigned primary custody from Miller to Jenkins--is typical of cases in which one parent repeatedly refuses to abide by a court-ordered custody arrangement. "Even though it's hit the headlines because this happens to be a same-sex couple, this is a very basic family law that we're talking about," Hughes said.

"There's something called parental alienation syndrome, in which one parent is constantly bad mouthing the other parent," Hughes explained. "And so the courts over the years have decided that the potential long term psychological impact to a child from that type of behavior is much greater than the temporary disruption that would result from a child changing households from one parent to the other."

Vermont Family Court Judge Richard Cohen agreed, ruling last Nov. 20 that the change of custody was necessary because the dispute had the capacity to harm the child more than a change of custody would. Wrote Judge Cohen, "Ms. Miller's interference with the relationship between (the child) and Ms. Jenkins have become so pervasive that it now outweighs the potential harm that could occur to the child by a chance of custody." Judge Cohen ordered Miller to surrender Isabella to Jenkins on Jan. 1, but when the date came, Miller--and Isabella with her--had gone. Individuals subsequently called upon by the court have pled ignorance as to Miller's whereabouts.

Christian Pundits: Court Crossed a Line

To Christian pundits, the case represents a precedent in which the state takes a child from her biological mother in favor of a non-biological former same-sex partner. Miller's lawyer, Mat Staver, is also the founder of the right wing--and anti-gay--Liberty Counsel, which has ties to Jerry Falwell's religious organization. Staver was one of two sources quoted in a Nov. 25 article posted at CitizenLink.com, a Focus on the Family-affiliated Web publication. The other source quoted in the article was a professor at the right-wing Christian Liberty University School of Law.

Said Staver, "This judge in Vermont ultimately ruled that he is going to switch custody from Lisa Miller, and take her own biological daughter Isabella and move her from Virginia and put her into an activist lesbian household up in Vermont with a person she really doesn't know, who's not her biological mother, and frankly who's not acted as a parent." Staver claimed that Isabella responded negatively to Jenkins' so-called "lesbian lifestyle," saying, "Every time that the visitation actually occurred, Isabella had violent reactions, because Janet exposed her to the lesbian lifestyle." Staver claimed that Jenkins "tried to convince her that she has two moms and even tried to scare her by saying that she was going to be taken from Lisa and transferred to Vermont."

The article depicted Miller's refusal to comply with the court-ordered custodial arrangement as en example of protectiveness, due to the "violent reactions" that Isabella allegedly exhibited to spending with Jenkins. However, Jenkins painted a much different picture, saying, "[M]y daughter completely knows me. We were together ten months ago. I mean, she adores me. She calls me Mama."

The case has raged for six years between the former life partners, who had entered into a civil union together before Miller conceived Isabella via artificial insemination. When their relationship ended, Miller relocated from Vermont to Virginia and became a Baptist. The ensuing custody dispute went all the way to the state supreme court of both states. Vermont's Supreme Court recognized Jenkins' parental relationship with Isabella, and the Vermont state Supreme Court found--despite a Virginia law that excludes same-sex families from any legal recognition--that while Miller would receive custody of Isabella, Jenkins would retain visitation rights. It is that arrangement that Judge Cohen's ruling reversed.

Cohen's ruling was denounced by Liberty University School of Law professor Rena Lindevaldsen, who told CitizenLink.com, "To have the first reported decision in the country stripping a biological mother of her child, solely because she has refused to give visitation to a legal stranger, is shocking." Added Lindevaldsen, "There's a lot of talk nowadays about drawing that line in the sand and understanding that government can't order certain things. When you're ordering a child to be stripped from her biological mother, you've got to wonder, has the court overstepped its bounds?"

Staver cited the case as illustrative of the perils of granting same-sex families full legal recognition, telling Newsweek in a Dec. 6, 2008 article that, "Lisa Miller's case illustrates two things in regards to same-sex marriages. First, one state cannot adopt same-sex unions without affecting the sister states. It's simply impossible. Secondly, these cases are about real people, and children are particularly caught in the tangled legal web of same-sex marriage, and Isabella is a classic example."

In that same article, however, Jenkins offered a glimpse into what the case has meant for her. "I did not divorce my child, I divorced my partner," she said. "Yet I've missed out on my child's kindergarten graduation. I'll never get that back. I don't even get to talk to my daughter on the phone. It's heinous what has transpired."

No Federal Protections = Legal Patchwork

Whether children of same-sex couples are more at risk of such legal entanglement than are children of feuding heterosexual former spouses may be a point of debate. When it does happen that dissolving same-sex unions involve children, however, what holds sway is the very same patchwork of legal rights and status that can change the legal standing of a family's members from one state to the next simply by crossing a border: while Vermont, where the women lived while together and where Jenkins still resides, now offers marriage equality, Virginia, where Miller relocated, specifically denies any legal recognition of same-sex families at all. Attorney Joseph Price, who represents Jenkins, told Newsweek, "You cannot just shop your case around in different states until you get a ruling in your favor. And that's essentially what Lisa has tried to do."

In that article, Miller, too, opened up, saying that she had a conversion experience while attending a Baptist church and decided to walk away from her lesbian identity. "I do not feel safe leaving my daughter with her," Miller told Newsweek, referring to Jenkins, "and I believe I have a God-given and constitutional right to raise my child as I see fit." Continued Miller, "There is a homosexual agenda at work here, and Isabella is a pawn in their game. It has nothing to do with the law. Isabella was saved at age 4, loves God, and knows what's right and what's wrong. We don't hate Janet, we pray for her soul and salvation."

The day after Miller failed to comply with the court's directive to hand Isabella over to Jenkins, the Associated Press covered the story. Attorney Sarah Star, who represents Jenkins, told the media that her client was "very disappointed, obviously. She's very concerned about Isabella and asks that if anybody sees Isabella, that they please contact the authorities."

Several days later, in a follow-up article, the Associated Press reported that Jenkins had filed am emergency motion for Miller to be found in contempt of court. Jenkins, through Star, also issued a statement in which she expressed her fear and concern. "I am so worried about Isabella," Jenkins' statement read. "I do not know where she is or whether she is okay." The article noted that Staver did not return calls about the case.

It is unknown whether Miller will resurface in time for a Feb. 23 hearing in Vermont, in which Judge Cohen is expected to issue a contempt of court citation against her. Another court date has also been set for May 19, in Virginia.

Meantime, the spat continues to make law: the case has given rise to a challenge, now in court, as to whether the state of Virginia can be expected to enforce laws on the books in Vermont, given that Virginia does not recognize same-sex families in any legal sense. The case has constitutional overtones, as it raises questions related to the "full faith and credit" clause of the U.S. Constitution, which stipulates that laws, rulings, and contracts originating in any state must be honored in all states. The clause is the basis for extradition of criminals back to the states where they committed crimes, and also enables heterosexual couples, businesses, and even the drivers of motor vehicles to obtain licenses or enter into contracts in one state and travel, work, and conduct business in other states without having to duplicate the effort.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.