RUTLAND, Vt. — First-grader Isabella doesn’t yet understand all the big decisions that judges here in Vermont and Virginia have made about her life.
But her mother, Lisa Miller, knows how profoundly those court orders will affect her 6-year-old. Miller’s attorneys even petitioned this landmark custody case she’s fighting with her former lesbian partner to the U.S. Supreme Court, but the court declined to hear it.
Isabella has been the subject of a five-year battle that has pitted conflicting state marriage statutes and drawn competing claims from federal laws.
“It’s rather like the two women claiming one baby before Solomon. One is the biological mother,” said Dale O’Leary, author of One Man, One Woman.
O’Leary, who has studied the problem of same-sex attraction for 12 years, said this story illustrates the heartache that results from two disordered practices: donor artificial insemination and homosexuality.
Miller, 40, of Lynchburg, Va., conceived Isabella via artificial insemination from an anonymous donor while she and Janet Jenkins, 44, of Fair Haven, Vt., were civil union partners.
Their relationship ended in 2003 when Isabella was 17 months old, and Miller returned with her daughter to her native Virginia. She re-embraced her Baptist faith and renounced her former homosexual lifestyle, which she had turned to after a failed heterosexual marriage.
A Virginia court in 2004 gave Miller, as sole parent, full custody of Isabella. But Miller’s legal odyssey had begun when she sought in 2003 to dissolve the Vermont civil union.
With the dissolution, the family court also addressed the custody issue. Jenkins has no biological relationship to Isabella and never tried to adopt her, but a Vermont judge interpreted the state’s civil union law to extend parental rights to Jenkins anyway.
“This child does have two parents, and neither one is the woman in Vermont,” O’Leary said.
“Donor insemination is wrong. Now kids are growing up and saying, ‘Where is my father?’ Why have we not preached Donum Vitae?” she said. Donum Vitae (The Gift of Life) is the Church’s 1987 instruction on artificial procreation. It was updated late last year with Dignitas Personae (The Dignity of the Person).
Miller’s challenge now is retaining custody and helping Isabella deal with the confusion she’ll face during court-ordered visitations with a woman presenting herself as another mother.
According to Miller, Isabella told her she had been forced to bathe naked with Jenkins during a visit two years ago and spoke of suicide after returning from visits. For subsequently refusing unsupervised visits, Miller faces contempt charges.
It’s a saga that’s been chronicled on Facebook.com (“Only One Mommy”), in USA Today and Newsweek, as well as by WorldNetDaily.com and Concerned Women for America.
In the latest development, Rutland County Family Court Judge William Cohen Jan. 28 denied Jenkins’ custody motion, but ruled she must have Isabella for two spring visits and five weeks in the summer.
“I really don’t have a choice,” Miller said in a phone interview the next day. “If I don’t adhere to this, a Virginia sheriff can take my daughter away.”
Virginia has both a law and a constitutional amendment that prohibits any legal recognition of same-sex “marriages” or civil unions within the state or from other states. In addition, the federal Defense of Marriage Act (DOMA) should protect the sovereignty of state marriage laws.
Regardless, both the Virginia Appeals Court and Virginia Supreme Court have ruled against Miller, saying the federal Parental Kidnapping Prevention Act mandates that custody and visitation orders enacted in one state be enforced in others.
In a phone interview from her home where she runs a licensed day-care center, Jenkins said the story of naked bathing was untrue and she viewed the Jan. 28 ruling as “positive for all of us.”
“All I’ve ever wanted is quality time with my kid,” she said. “Divorce is tough. If people look at the facts, they’ll see it’s the same as any heterosexual relationship.”
Gay and Lesbian Advocates and Defenders (GLAD) and Lambda Legal are backing Jenkins.
“The Virginia court ruled that the first state to hear a case retains jurisdiction. We’re pleased there were no gay exceptions,” GLAD attorney Jennifer Levi said.
Vermont has no law assigning parenthood to the spouse of a woman impregnated through artificial insemination. But in his 2004 ruling, Judge Cohen noted that the civil union statute gives partners every benefit of marriage.
“The presumption that a child born while two people are married is the legitimate child of the marriage has a long tradition in the common law,” he wrote. “To not recognize the presumption would violate the mandate of the civil union law.”
“The implication for the future of marriage laws in the U.S. is frightening,” said Rena Lendevaldsen, an attorney from Liberty Counsel, a civil liberties legal defense group representing Miller. “What makes Lisa’s case unique is that after Vermont trampled Lisa’s constitutional rights by declaring Janet a parent, Virginia courts allowed Vermont to trump Virginia’s marriage laws. You’ll have states like Connecticut, Massachusetts and Vermont setting precedents for the rest of the country, especially with the president threatening to do away with DOMA.”
Gail Besse writes