An Arrest in the Vermont/Virginia Lesbian Custody Case

From time to time I have written about a case involving two women (Lisa Miller and Janet Jenkins) who had a child together.   Time for another update as there has been an arrest in the case. 

I will not go into great detail about the underlying case here–you can follow links back to read the whole tale.  In brief, the women separated and Miller sought to deny that Jenkins was a legal parent.   (If Jenkins were not a legal parent, there’s no doubt that Miller is entitled to sole custody.)  

Miller raised her argument in Virginia, a state which is generally hostile to any claim that a child has two mothers.   But Vermont had already made a determination on this point and it favored Jenkins.  

The possibility that two states could disagree about who is a parent is fairly obvious–the law differs quite a bit state-to-state.  And the prospect of people shopping around for the law that favors them is unsettling, to say the least.   So there’s a uniform statute designed to help all states reach the same conclusion about which state gets to decide.   Consistent with that law and despite its general hostility to the two-mother family, Virginia declined to make an independent decision on parenthood and instead deferred to Vermont’s ruling.   This meant that Miller and Jenkins were legally recognized as co-parents of their daughter.   As co-parents, they were to share custody.  

Miller refused to obey repeated court orders designed to accomplish and/or facilitate shared custody and in the end she fled the country.  This is criminal.     Not only did Miller commit a federal crime when she fled, those who aided her knowing of the outstanding orders are also subject to prosecution.  And now someone connected with her flight has been arrested.  (You can read this account from Professor Nancy Polikoff’s blog for a more detailed discussion of the facts.)     

It’s important to realize that there are two separate questions here.  First, there is the legal question of who the child’s parents are.   Obviously folks are entitled to their opinions on this one, but the matter has been fully litigated and determined by a court–really even more than one court.   I don’t think anyone can argue that Miller didn’t have a fair chance to litigate the issue.  

This leads to the second question–do you get to pick and choose among court order based on a personal view of whether they are right or wrong?   Miller and those who aided her would probably say that you do.   That’s a position I think you can accept or reject without regard to your resolution of the first question. 

What I mean is you can think the courts got the original decision wrong (and that Jenkins should not have been recognized as a parent) but still assert that we have to obey court orders.  Or you could think the courts got the original decision right (and that Jenkins should have been recognized as a parent) but agree that individuals can pick and choose among court orders they obey.  

This case provides a useful way of thinking about that second question–what should you do once there’s a court order?  

There’s enough of an anti-authoritarian streak in me so that I do pause before I say “you have to honor it”, but it’s hard for me to see what the alternative is.  I’m not wild about letting each person pick and choose which orders to obey.  I have no illusion that I’ll be the one who gets to pick and choose for everyone (though of course, if I were, I’d get it right).   And I don’t believe there is a shared set of super-rules that exist outside of our legal system that allow an impartial determination of which orders you have to follow.    (I think that might be an avenue available to someone who really believes there is an indendantly existing body of “natural law”  (which to some means “God’s law”), but don’t accept that.)  

This case happens not to be so hard for me because I think the first decision was correct–Jenkins is a mother to this child.   But I don’t really want to let that conviction shield me from the difficulty of the second question.    Consistency requires that I be ready to say that if Jenkins had lost, she’d be stuck with that ruling and be obliged to abide by it.    We’ll have to wait for that case to see if it’s really true.


17 responses to “An Arrest in the Vermont/Virginia Lesbian Custody Case

  1. This is the thing that troubles me about laws that differ from State to State, not just for deciding who is or is not obligated to raise a child but for other things like who lives and who dies, who does 25 years to life and who gets off Scott free. My brother was saying that its un-American of me to want all the states to follow the same rules. Something about States rights. I’m only just begining to understand that its not so easy to make a new Federal law that all the States have to comply with.

    I don’t know where your at in your evolving opinion about the mother being the primary parent since she carried the baby for 9 months. Of course you know I agree with that, but Miller is not being fair to Jenkins I don’t like the idea of calling Jenkins the child’s parent because she did not reprocduce to give her that unqualified title and she did not adopt legally in order to be given the legal title of adoptive parent, so I guess what she is would be an intended parent or a defacto parent (in the way an unrelated husband would usurp the unqualified title of parent by allowing an incorrect presumption of paternity to go uncorrected?) I think she does meet your test for behaving toward the child as a parent is expected to behave and so I do think its unfair for the child’s Mother to completely sever the relationship. And fleeing the country was just a dumb thing to do now she is going to loose custody of HER child because she could not just be reasonable and split custody.

    I really feel that parental obligation is something you either have by virtue of having reproduced or by virtue of formal transfer of parental authority, so its clear the unrelated person wanted the obligation and its clear that the person who had it willingly transfered it. That seems only fair to everyone involved so that a woman’s live in boyfriend who gets involved in helping her with her kids is not saddled with child support payments. But here it seems right from the begining everyone was on board,

    My opinions have softened a bit. Nobody is lying to the child here so I see this in a very different less biologically driven light.

    • Historically family law has been a matter for states rather than a matter for the federal government. This means there is always the potential for rules that vary widely from one place to another. It seems it might be more of an issue now because people travel more and hence, are more likely to run into the different laws.

      At the same time there are a couple of different ways in which state laws can be harmonized. Perhaps most importantly, sometimes it turns out that the standard used by a number of states violates the US Constitution, and after the conflicting standard can no longer be used. The most important instance of this, I think, is the Supreme Court decision in Loving v. Virginia which struck down laws prohibiting inter-racial marriage. Before that case, thirteen (I think it was) states made those marriages criminal. Afterwards, no state could do that.

      The other harmonizing advice is the Full Faith and Credit Clause. This is what’s at stake in that Louisana birth certificate case. Louisiana is entitled to have its own laws about who can and who cannot adopt (unless they pick an unconsitutional standard) but it is also obliged to recognize court judgments from other states. Not all family law matters end in court judgments. Marriages, for example, are not court judgments. But adoptions do end in court judgements.

      Anyway, the variation in law is a long standing feature of the American legal system which does balance state vs. federal authority.

  2. I supposed states are obligated to respect each other’s decisions, as we discussed in the Louisiana case. So I guess even though I disagree with the decision I guess it would have to be enforced.

    But going back to the decision itself, upon rereading the case I realize that Jenkins had been acting as a parent for less than a year before the split up, which was 7 years ago. This is not a de facto parent; this is a woman with no connection to the child. Being reunited with this woman offers zero psychological benefit to the child. No harm is suggested by separation.

    This can not be said regarding Goldman who was a biological parent. His absence would have surely affected his child in some way, although its extent can not be determined. This is the way our kin structure is designed in this culture (as in most cultures) and Julie you can not just wish its existence a way.

    That is why David Goldman’s ex wife could be declared an unfit parent for blocking his access to Sean. But that does not apply to Miller.

    Julie you wrote that they “had” a child together. Since the word “had” usually refers to the biological creation of the child, it is an inaccurate sentence.

    • seems that jenkins obtained her status as parent via her civil union with Miller. As long as civil unions are structured to allow this possibility I do not support them and would make no differentiation between them and single folk.
      I have repeatedly stated my support for a marriage-like legal status for homosexual couples in a marriage-like relationship, that specifically excludes all reproductive implications.

      • But they aren’t single folk, they are a committed couple raising a child together. The Civil Union is not only evidence of that, but it also (should) legally commit them to each other.

        It shouldn’t obscure the truth about birth certificates or make it harder for a bio-parent to be recognized as a legal parent, and I don’t think it should lead to three legal parents, but if the baby would only have one legal parent, and that parent is married or in a Civil Union, then doesn’t it make sense that the spouse should be the other legal parent automatically?

        I agree that CU’s should specifically exclude reproductive rights, but this is adoption, not reproduction. I think CU’s and marriage should make it easier to adopt the spouse’s children, but not to the extent of getting their names on the birth certificate or shutting out a parent.

        • I agree John, I’m only saying that I oppose civil unions if they will be misused in this fashion. What’s needed is for the law to differentiate clearly.

          Regarding step parent adoption, I support the availability of step parent adoption. But since becoming aware of all these cases, I’ve come to the conclusion that even in the case of a second parent adoption, there should be some kind of assessment of parental fitness of the second parent, as well as the stability of the relationship. Perhaps a mininum time together without separation requirement, or some such.

    • I actually thought about what word to use there–where you identify the “had” problem. It made me realize that I don’t know what it means to “have” (or in the past, to have “had”) a child. So I’m not sure I’ll agree it is inaccuate, but it is worth thinking about.

    • The problem with that argument is why Jenkins had had almost no contact with the child for seven year: Miller had broken the law and blocked Jenkins from seeing the child the whole time. That is the reason that the case kept going back to court, Jenkins trying to get enforcement and Miller trying to get a ruling in her favor. If we allowed an argument that just because someone had prevented visitation rights for seven years, and that, therefore, the person who hadn’t been allowed his/her legal visitations had no connection with the child and should be legally separated from said child, the country would be awash with cases of denials of visitations with the express purpose of setting up an argument such as yours.

      • Totally true. And this is why we cannot reward this sort of conduct, even though you might be able to make an argument that for the individual child, it’s better to leave things along. The rule of law has to be upheld, or we hit total chaos.

        You’ll see this reasoning in court decisions in cases like this. It’s not about the best interests of this particular chlid any more. The court thought about that long ago and made its ruling. This is now about ensuring that people comply with the law.

  3. I’d be interested in research that discuss about any long term repercussions on children separated at early age from non-biological secondary care givers.
    I’m betting there isn’t something substantial.

    • I’m not sure. There’s certainly research (I do not know how much) about the importance of maintaining pschyological/social attachments for children, including very young children. I don’t know how it gets broken down. In general, I think there is a broad consensus that stability and continuity are quire important.

      There’s also literature about the concept of “psychological parent”–which is a person who plays that role in a child’s life without regard to any other legal/biological status. That’s the foundation of a lot of the de facto parent cases Where a person is a psychological parent, disruption of the relationship has detrimental effects on the child. Like everything else, you’ll find disagreement about this and of course, when a person is a psychologica parent is open to discussion and dispute.

  4. would the question of civil disobedience fit in here?
    If you believe a court order to be morally wrong, you must violate it, but you would have to be prepared for the consequences including imprisonment. You don’t have much of a legal defense.
    Your defense consists of your ability to inspire enough of a public outrage to lead to a change in the law.

    • This is an honorable and well respected view. Dr. Martin Luther King’s Letter from the Birmingham Jail is a particularly powerful explication of the view. It’s an interesting contrast with Walker vs. City of Birmingham–an opinion of the US Supreme Court considering the same question on the same facts. The Court thinks King’s (and Kisrita’s) view is an invitation to anarchy and that a person must obey the the law.

      I don’t mean to accuse you of being an anarchist, Kisrita, and you are in great company with Dr. King. He wasn’t an anarchist. His view was that a person was morally obliged to defy and unjust law and that there was a reliable way to tell just laws from unjust laws.

  5. I’m a European and not an American but I find the discussion of “non-biological secondary care-givers” simultaneously intriguing and puzzling. Surely a baby has no concept of whether she’s being cuddled by a grandmother or a family friend? What matters is the role that person plays in the child’s life, not the common strands of DNA!

    • I don’t know that this is so much a US/European distinction. For some people, DNA is all important and care, while important, can be delivered by anyone. I tend to fall on the side of the divide you seem to occupy. If you poke around on the blog you’ll find extended discussions on this.

    • But Zoe HOW a person comes to be in possession of a child in order to care for the child matters does it not? If a person is caring for a child not their own offspring it is reasonable for society to ask “Hey Lady, where did you get that kid?” We need to ask that question because children are often the victims of child trafficking not just for prostitution but also to serve as family children for people unable to have their own – black market adoption is illegal because the origin of the child and written permission from the parents consenting to the adoption are absent and the adoptive parents get recorded as if they are the actual parents. You can see how not recording the transfer from biological to adoptive is dangerous for all children and there is no reason why a hopeful adoptive parent should shy away from having the transfer from the biololgical parent all properly recorded, this protects them from dealing with child brokers who have kidnapped or pressured parents out of their children. So while care giving is totally important how a person gets to be care giving to a child they did not themselves create really matters.

    • the kid isn’t a baby

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