Just a very brief note to follow up on the discussion of the lesbian custody case involving Lisa Miller and Janet Jenkins. (I’ve written about this case a number of times. I won’t summarize the facts here. You can read the most recent post for some details.) The case is back in the news because of the criminal prosecution of Kenneth Miller (a Mennonite/Amish pastor who is not related to Lisa Miller) on charges of abetting international parental kidnapping.
The NYT has had two stories on the ongoing criminal trial. They are here and here. Since I’ve written about this case multiple times in the past (most recently here) I wanted to note the continuing coverage for anyone else following along. The key issue in the trial seems to be whether Miller (the criminal defendant) knew that Miller (the fleeing parent) was evading a court order. As to that, it’s hard for me to understand why Miller (the defendant) would have acted with such a degree of stealth had he not had some idea that he wasn’t supposed to be doing what he was doing. But then, I admit I do not know all the facts nor do I see them as the jury sees them.
On a side note, you can also see here the degree to which ideology and religion motivate many of the actors in the case. Very few of the people aiding Miller (the fleeing mother) knew her or her daughter. They certainly didn’t know Janet Jenkins, nor did they have any idea what her relationship to the child was. None of that mattered. It was enough that Miller had renounced her lesbian relationship and was seeking to cut her child off from contact with her other (still lesbian) mother. I can see that they might say this in the best interests of the child–because exposure to a lesbian lifestyle (I’ll guess they think of it that way) is necessarily a bad thing. Presumably they’d do the same for any ex-lesbian fleeing a same-sex co-parent without any regard for the underlying facts. That’s a bit chilling to me, frankly.
Addendum: I’m adding this a bit after I put the post up because I’ve been reading over some of the comments on the other recent post about this case. I have made the same point in response to two comments there but I think I’d like to elevate the discussion to the level of a post. So here goes:
A lot of time has passed since Miller absconded with the child. As things stand today, Miller has (I assume) an present parental relationship with the child while Jenkins does not. I’ve frequently said that I believe the law needs to respond to the day-to-day realities of children’s lives. Consistent with that, should the law leave Miller alone with the child? That is, after all, the current reality.
The answer to this (from my point of view, and I actually think this is pretty mainstream reasoning) is “No.” Here’s why:
In the underlying case, a court determined that both Miller and Jenkins were legal parents, each with rights to see the child. Each had a relationship with the child. Miller acted unlawfully and disrupted–perhaps I should even say destroyed–Jenkins relationship with the child. This is illegal. (It is, in my view, akin to what Sean Goldman’s mother did when she refused to return from Brazil, although it’s not as clear to me that this was illegal.)
Now by persisting in her conduct Miller has created a new reality–one in which she has a relationship with the child and Jenkins does not. Thus, it’s true that a simple examination of day-to-day realities would favor her. But there’s a larger interest that has come into play–the interest all of us share (or many of us share) in having a proper functioning judicial system for resolving disputes.
Judges issue orders all the time in all sorts of cases. Generlly we expect people to honor them. (Otherwise we head towards chaos.) Defying a court order is generally wrong. (But do go read the post on this by Professor Polikoff.) The fact that you are successful in defying a court order for a long time doesn’t make the behavior right. And thus, we cannot reward that behavior. We cannot have a rule that if you successfully defy a court order for three years or five years or whatever, then it becomes okay to have defied it in the first place.
This systemic interest in a well-functioning court system trumps the individual interest of the specific child. I’ve written this before. It’s a terrible thing–I conceed. It would be better of a court could rule quickly and immediately implement its decision–in which case Jenkins would have custody here. But if we cannot have that (and sometimes we cannot) then I think we have to bite the bullet and enforce the orders when we find the children. It should be done with as much care and sensitivity as possible–we should be mindful of the everyday realities we are disrupting, even if the asconding parents were not so mindful when they took off. But where, as here, someone has so clearly acted in defiance of a specific court order, I think it does need to be done.