There’s a case that has literally been dragging on for years that I’ve talked about repeatedly. (The link will lead you to the last most recent post and you can follow it backwards from there.) A new development is worthy of mention.
Janet Jenkins and Lisa Miller were in a lesbian relationship. They had a child together–Isabella. She is now seven.
Jenkins and Miller split up in 2003 and fought over parentage of the child. Miller, who had given birth to Isabella, insisted that Jenkins was not a legal parent. She went to court in Virginia, a state notably hostile to lesbian and gay couples. Jenkins went to court in Vermont, a state far more supportive of lesbian and gay relationships. There was quite a bit of wrangling over which state was the correct one for adjudication, which in turn would determine who won.
Ultimately, courts in both states decided that Vermont was the correct state and Jenkins was recognized as a legal parent of the child. At that point it became an ordinary custody case between two legal parents. The Vermont court entered a custody order giving custody to Miller with visitation to Jenkins.
Unfortunately, Miller appears to be unwilling to recognize Jenkins status as a legal parent. Thus, she has refused to cooperate with visitation and has effectively hindered Jenkins’ contact with their daughter. As a consequence of this behavior, the Vermont court has now switched custody to Jenkins. Jenkins has repeatedly stated her willingness to allow Miller to continue her relationship with their daughter.
This isn’t really that unusual as custody decisions go. Each legal parent is entitled to have a relationship with the child, unless that parent is unfit. Neither Miller nor Jenkins is unfit. But Jenkins is a preferable custodial parent because she will foster the child’s relationship with her other parents while Miller has demonstrated that she will not do so. Thus, it is seen as better for Isabella to reside with Jenkins and have access to both her parents.
But even as it is an ordinary sort of decision, it is also an important one. This isn’t an ordinary case and it doesn’t have an ordinary history. Perhaps as much as anything it demonstrates why a lesbian mother must also be a legal mother, so that she can insist on what is best for her child.