Equality Fairfax

Congratulations to the citizens of Vermont and Iowa! Last week’s Iowa Supreme Court ruling and today’s vote in Vermont have brought great news to a community still a bit numb from the setback in California. The best part of today’s news is that the Vermont legislature was able to override a veto from the governor and that for the first time in America, a state has passed a marriage equality law without a court ruling.

New England has become the epicenter of marriage equality in America with Vermont joining Massachusetts and Connecticut. Six percent of the states now support marriage equality. That’s a small percentage but it’s double the three percent it was a week ago.

Virginia is still far behind these states legislatively, judicially and socially, but as the rest of the country sees that world really isn’t going to end because two men get married and that the sky won’t fall when two women say, “I do” then we’ll experience some climate change of a positive sort.

Congratulations to Iowa, Vermont, Connecticut and Massachusetts and thanks for blazing a trail for the rest of us to follow!

It seems the Miller-Jenkins case has been going on for years. Every time Jenkins has won a seemingly final victory, Miller has filed yet another case seeking to have the decision overturned. In a case that has wandered from Vermont to Virginia to the federal courts, one would think that eventually this case would be resolved. But, apparently, one would be wrong.

Miller’s continued defiance of the court reportedly has put her custody of the child at risk. Yet, I can’t help wondering exactly how much slack the courts will continue to give her. The cynical part of me can’t help wondering if the same amount of slack would be given to an openly gay parent. Perhaps, but it also isn’t hard to believe that that the patience of the court would have been exhausted long before this.

As one who has never met either Miller or Jenkins, I hesitate to make judgements of either woman. I only know what I see and hear in the media and, as a whole, the media seems far more interested in controversy than facts. It would be easy to sympathize with Janet Jenkins and take her side simply in solidarity. But, the truth is, you can reach the conclusion that it is far past time for this case to be settled and out of the media. The courts have ruled on this multiple times and, with one exception (that of a Virginia lower court) has concluded that Jenkins must be granted part time custody. The longer this carries on, the more it simply looks like personal vendetta or an attempt to avoid any recognition of her past relationship.

The one who probably suffers the most here is the child. Most of her life and certainly all of her memory, her status has been in question. I can’t imagine what that’s like. She has a parent she barely knows because one parent won’t permit visitation. My own parents split up when I was very young and not under the best terms, yet both had the dignity not to use me as a weapon in their own personal battles. Too many divorced parents try to get their children to choose sides or try to poison the child against the other parent. I don’t know if that has happened here, but I have seen what it is like for other children to endure that. It can create psychological wounds that last a lifetime.

Let’s hope that this case can stop being a model of how to badly end a relationship and let all sides get on with their lives.

U.S. Supreme Court Rejects Appeal in Custody Case

(Richmond, April 30) – Today, the U.S. Supreme Court rejected an appeal in a two-state custody case between a former lesbian couple.

Lisa Miller, a woman living in Virginia and claiming to be “ex-gay” filed the appeal contesting a Vermont court order requiring that her former partner, Janet Jenkins, be allowed to visit their now four-year old daughter once weekend a month. Janet lives in Vermont.

“By refusing to become involved in this case, the Supreme Court is sending a message that state and federal laws in custody disputes are adequate to protect the best-interest of the child,” said Dyana Mason, Equality Virginia Education Fund’s Executive Director, which has participated in the case on behalf of Janet Jenkins.  “It’s heartening to see that sexual orientation of the parents had absolutely no bearing on this case.”

Originally filing immediately following the implementation of HB751, or the “Affirmation Act” in July 2004, Lisa Miller attempted to prevent Janet from having any parental rights in regards to their daughter born while they were together and the couple had a civil union.  The lawsuit contradicted a temporary custody order that had been issued while dissolving their civil union.

Arguing that “forum shopping” is not permissible under state and federal laws to prevent parents from seeking more friendly venues after they already have filed in one court, Janet Jenkins argued her case successfully before both the Vermont Supreme Court and the Virginia Court of Appeals.  Lisa filed this latest petition with the U.S. Supreme Court based on the federal Defense of Marriage Act, or DOMA.

“Hopefully now, Lisa will abide by the court order and allow Janet visitation rights with their child. Unfortunately, initial reports state that while they have lost nearly every round in this case, Lisa fails to see that the law in this regard is quite clear and she should abide by it,” Mason.  “Their daughter deserves nothing less than two loving parents in her life.”

(August 4, Richmond) Today, the Vermont Supreme Court issued a ruling that stated that Vermont courts, and not those in Virginia, have jurisdiction over a two-state custody dispute between a former lesbian couple who had entered into a legal civil union in that state.

“We applaud that a court got it right today,” said Jay Squires, Equality Virginia Education Fund Board Chair, which is serving as co-counsel to Janet Miller-Jenkins, who still resides in Vermont and was seeking to uphold the custody order. “Both state and federal laws say that a court order granting custody can’t be overturned by going to another state court and shopping for a second opinion. This decision is consistent with the federal Uniform Child Custody Jurisdiction Act and Parental Kidnapping Protection Act that are designed to prohibit just this type of ‘forum shopping’.”

The case is part of a two-year, two-state custody dispute between two women who entered into a legal civil union in Vermont and had a daughter together . It is similar to many cases brought every day involving parents who are seeking to dissolve their legal unions and determine custody of their children.

Lead Counsel, Joseph Price of the Washington, DC firm Arent Fox, also a member of the Equality Virginia Education Fund Board said, “I am personally gratified for Janet. I hope this decision sets a clear precedent that an activist judge can’t overturn settled federal and state law governing custody disputes.”

The couple separated in 2003 and obtained an order regarding their daughter in the process of dissolving their civil union. Lisa Miller-Jenkins, the biological parent, refused to honor the custody order and took the couple’s daughter and fled to Virginia.

With the help of two anti-gay groups, Vermont Renewal and the Liberty Counsel, Lisa filed a petition on July 1, 2004 (the date HB 751, or the “Affirmation of Marriage Act” went into effect) in Frederick County, Virginia asking a judge to declare that Janet had no legal parental rights and refusing the Vermont court’s jurisdiction in the case. The trial judge used HB 751 as a justification to ignore federal law, finding in Lisa’s favor. Janet Miller-Jenkins, with the support of Arent Fox, Equality Virginia Education Fund, Lambda Legal and the ACLU of Virginia appealed the judge’s decision to the Virginia Court of Appeals. A ruling is expected from that court in the next few weeks.

You can read the full text of the Court’s ruling at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=vt&vol=/supreme/&invol=2004-443.