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.