More on the Vermont/Virginia Case Arrest

This is from today’s New York Times and fills in some of the details.   It ties back to my last post.   Obviously there are many disputes over the facts and I have no access to any information beyond what is available to the public.  But this article (and a little reflection over the weekend) do raise some questions that interest me. 

First, you can see the ways in which politics and family law become intertwined.   Miller’s rejection of Jenkins is related to her rejection of homosexuality.  It’s a little hard to identify cause and effect here, but likely it’s all interwoven on a personal level.   But whatever the realities for the two women, the involvement of others seems to me to be at least in part motivated by ideological commitment–in this case, deep opposition to lesbian and gay parenting on the one side and support for it on the other.  In this way a case becomes a cause. 

I’m afraid ideology has come to rule the day.   Unless you accept the position that a lesbian parent is always a bad parent, it’s hard to see how you can make a judgment that Miller is right here.     If some lesbians are decent parents, then don’t we really need to let this case be decided on its specific facts–which is presumably what the courts have been trying to do?   

This brings me back to the question–discussed in part in the last set of comments–about an individual’s obligation to follow a court order even if they think it wrong.   While I am somewhat sympathetic to that viewpoint it seems to me to potentially wreak havoc with family law in particular.   Surely many parents who are unsatisfied with judicial resolution of custody claims would prefer to follow their own judgment of the correct outcome.   But equally surely, we cannot let them do that.    It will make a mockery of judicial resolution of custody cases if we assert that litigants are entitled to disregard results where they have a really sincere belief they are wrong.  

There’s another theme you can see illustrated in this case–the importance of the continuing role of parents post-separation.    Both women here are legal parents of the child.  (I understand that not everyone is happy about that, but I think there is no disagreement about the legal status.)   Original custody was with Miller.  But Miller interfered (in a big way) with her child’s relationship with the child’s other parent.  Because we believe that a child should maintain contact with both her/his parents, that’s a basis on which one can ask to switch custody.   That’s what happened here–Jenkins was given custody because she would facilitate contact with Miller.  

The idea that a court will favor the parent who will better facilitate contact with the other parent is an interesting one.  It’s not entirely clear to me whether it rests on an assumption that contact with both parents is always better for the child or whether it reflects a recognition that parents have rights, too.   It’s probably a mix of both.  Still, it’s a pretty common precept that you will see expressed in many cases.   And we generally stick with it, even where the parent with original custody can articulate specific concerns about the influence of the other parent.


23 responses to “More on the Vermont/Virginia Case Arrest

  1. I disagree Julie that this is the crux of the issue. This is not about the parental fitness of lesbians. This is about the parental status of non-biologically related past partner vis a vis the biological parent.
    While it is correct that this particular case pits a currently hetero woman against a lesbian woman, I don’t see that this case would be any different if it involved two currently lesbian women, like many other cases featured on your blog.

    • I’m not entirely sure I know what you are disagreeing with. I actually agree with you first, that this isn’t about parental status anymore–that was settled in the earlier part of the litigation. I also agree that the case wouldn’t be different (legally) if it was between two currently lesbian women. But the political understanding of the case would be different. I think Miller’s rejection of lesbianism has been used to rally people to her cause, just as Jenkins affirmance of her lesbianism has been used to rally people to her cause.

  2. When gay and lesbian advocacy groups take up the cry of the non-biological parent, I feel that they are really taking up a cry regarding the symbolic relationship between the partners, not about the partners’ relationship with the kid.
    Otherwise there would be no reason to cast it as a gay rights issue (especially when both litigants are homosexual!)
    This is wrong. Conceptually speaking, it is exploiting the issue of parental relationships to make a symbolic point on adult sexual relationships.

    My philosophy is that I am willing to concede the equality of the relationship with adults, as long as it is not projected onto the relationship with the child.

    • I don’t agree with you. I think these cases really are about the parent/child relationships at stake. They are gay rights (or lesbian rights) cases, because heterosexual couples in a simliar situation generally have much stronger legal protections. Lesbians who have children together create a family configuration which is not legally recognized in a number of states and hence, those lesbian families are vulnerable. A bit part of what the lesbian/gay rights organizations do is to develop devices (like second-parent adoptions) that will protect the family relationships. Regretably some of the litigation takes place at the dissolution of the family, as that is one of the times that legal recognition matters.

  3. I am reminded of a case that once appeared on your blog; that of a gay sperm donor, (who had a relationship and was known as “dada” by his child), who sued to prevent the child’s mother and her lesbian partner from leaving the state. He lost, as he was declared a mere sperm donor.
    This is a logical outcome of the philosophy that fails to differentiate and construct borders between the relationship between the adult partners and the parent-child relationship. This is the logical outcome of the philosophy favored by these gay advocacy groups. And there is no doubt that this resulted in a discriminatory outcome for the gay father.
    It is my view that the gay advocacy groups are struggling for symbolic recognition, and not for the day to day needs of the people directly affected.

  4. in terms of parental fitness, if I would resort to stereotyping at all, I would have to say that I personally am more sympathetic to lesbians than to religious fundamentalists who change their sexual orientation at the drop of a hat. Of course this is a gross stereotype which may be totally not reflective of the people involved. I just mention this to emphasize my point that I don’t think the parental fitness of lesbians is the issue at all.
    One more point: Ms. Jenkins should think twice about her actions which will likely amount to a pyrrhic victory at best for her. The kid is nine and has no memory and no relationship with her. Neither is she a biological relative whose absence would significant to the child. Neither is their a claim that the current custodial parent is unfit.
    Presumably even if she one custody, and Ms. Miller was to be prosecuted and incarcerated for kidnapping, does Ms. Jenkins really expect this to result in a loving mother daughter reunion between her and Isabella. I find it likely instead that it would lead to lifelong resentment.

    • The pyrrhic victory problem is a big one with cases like this, as with other cases where there is a long legal struggle during which one person is denied access to the child. Unsurprisingly, it doesn’t matter to me whether the parent (and for the moment I am just going to assume it is a parent) genetically related or not. But my problem is more acute because what matters to me generally is the actual adult/child relationship. That relationship can be disrupted for years during the litigation. It’s not always possible to repair the relationship. And so the victory, if there is a victory, may not be of obvious benefit to the “winning” parent or to the child.

      Which takes me back to an earlier post–I’ll find it at some point, just not right now. The passage of time is the hardest thing to manage in the process of family law. While litigation is unfolding kids grow up. But I think you cannot say that because a person has (wrongly–for the presumption in these cases is the action of the absconding parent is wrongful) created a set of facts that has been allowed to exist for a long time, that becomes the right answer. Rewarding bad behavior will only lead to more bad outcomes. But yes, it can seem a bit of a pyrrhic victory to me, and that’s rather sad. It would be much better if cases could be resolved more quickly. If, for instance, Miller had complied with the court order (or been forced to comply with it) years ago, that would be a better result.

      • For me the absence of a genetic relationship is central to why I consider this a pyrrhic victory.
        For if their was a genetic relationship, the loss of that relationship would be felt in some way in the childs life. This may or may not be fair, but the fact is that they do. It is hard for me to understand how you can deny this and declare it irrelevant. Certainly one must weight the pro side and con side, but both sides exist. Unlike this case where there is absolutely no pro side.
        I’m speaking from the perspective of the welfare of the child, not of the state. The state continues to be responsible to enforce their own absurd laws, until the law is changed.

        • The passage of time has a different implication in the case of a defacto parent than of an adoptive or genetic parent.
          If a long period of time has gone by, then the former de facto parent, is de facto no longer a parent.

          (I am aware that this doesn’t apply to Jenkins, who gained her status by a legal construct, not by de facto parenting)

  5. I would have to say that if Ms. Jenkins was a male, I would find her behavior exceedingly wierd to say the least, more so than now as she is a woman.
    Julie please tell me, these cases seem to be arising with great frequency following lesbian breakups. (or does it just seem so to me as a reader of your blog?) Somehow I don’t hear much of infertile men, who break up not a year after the kid is born, participating in intense custody battles to try to gain access to the kid.

    • This is a good question that I think about a fair bit. I can see several possible answers, but I don’t know if any or all of them are right. I suspect a combination. First off, it could be my bias as an observer. I’m watching for these cases and so I hear about most of them. The other kinds of cases you describe it would be much more hit or miss.

      Second, in many instances the legal status of the infertile man as a parent is much more clear. Thus, there might be a custody fight, but it would be one of those individualized struggles about what is best for a particular child. Nothing that makes news, nothing that interesting. That’s not what is going on in these cases. These cases about who gets recognized as a parent. Where an ordinary custody case probably doesn’t get appealed, these do–they potentially make new law.

      Third, as with the Vermont/Virginia case, these cases can become political and therefore higher profile.

      Finally, and this the one I am most doubtful of, maybe where the men who you are thinking of do not have clear status as a parent they are more likely to give up. If they do give up, no case, no story. Perhaps that is a gender thing, but who can say. I’ll just reiterate that in general the legal status of the male partner who is genetically unrelated is often more secure, so there’s no need to face the giving up question.

      • funny I started out with the opposite hypothesis, my thought was that perhaps men are less likely to be emotionally invested than women in their partner’s genetic progeny, and therefore do not fight for custody, legal status or not. of course I have no data so this could be just a wild thought.

  6. I may be paranoid, but I don’t think I’d be alone in my suspicions of an unrelated man behaving as Jenkins is.

    • I wonder if there is any data that might help us know the answer to this? I do not know whether there is.

      • Perhaps you could search and see if some cases like these exist? I’m very curious to know if judges are as creeped out as I would be.

        I am sorry to burden you with this request but not being a legal scholar I don’t have a clue where to start looking myself.

        • I do keep my eyes open and I haven’t seen exactly what you are talking about. I’ll look further.

          But you do see some cases that are at least a little similar. There are, for instance, a series of cases where men and women become involved (but not married) while the woman is pregnant. It is thus clear to everyone from the get-go that the man is not genetically related to the child.

          The law is structured to facilitate recognition of the man who steps in as a legal parent, so I’m not sure I’ve seen a case where he is seeking recognition. But there are cases where there is a custody fight between the two people, which is to say the man is asserting his right to retain a relationship with the child. In at least some of those cases, I think he’s cast as rather heroic–stepping up and stepping in, willing to raise another man’s child, as it were.

  7. I don’t know if there is data to support either side. But, I find the hypothesis that simply being a male (who is not biologically related) somehow automatically translates into a lack of interest in a child quite disturbing.

    I have practiced family law for about 9 years now and have represented both men and women in custody and divorce. In my experience, and with rare exception, the bonds parents feel to their children doesn’t differ much based on gender or whether the child is biologically related to them. The overarching emotion I see is that both parents fear and deeply feel the loss associated with spending less time with their children. Of course, people are emotionally complex and there are typically many other emotions involved in a custody/divorce matter, and those are at play as well.

    What I have seen specifically related to custody is the difference between how men and women perceive the judicial systems treatment of them as parents. I suspect this likely relates to more to societal expectations and stereotypes that the realities of the judicial system itself. Generally speaking, men still tend to see the judicial system as favoring women and discounting their value as a parent. Women very often have the same perception.

    In my experience, how men perceive the system effects them in many ways including how much effort they are willing to put into what they see as a losing position even if their legal status as a parent is secure.

  8. Interesting. kisarita’s thoughts remind me of this old case:
    “Santa Cruz court to hear former lesbian partners’ custody dispute over twins ”
    Quote from article:
    “Darlene Kemp, a lawyer representing Quale, said Smith’s attorneys are trying to turn the case into a gay-rights crusade when it’s simply about establishing the legal claim that belongs to biological parents.

    “It’s being turned it into something political, when it’s not that at all,” Kemp said. “It doesn’t have anything to do with sexual orientation. She doesn’t meet the criteria of a presumed parent.””

    • Wow Karen, the kid’s birth certificates obviously need to be corrected they know who those children’s father is and its not a woman. There is no reason why he should not be obligated to support his children and have partial custody of them even if he did not live with the mother ever.

      Its just crazy that people could ever be held to a promise to let someone have authority over their child’s life. So what if the mother promised, she does not have to keep that promise. She was foolish ever to put that woman’s name on the children’s birth record, honestly who was she to decide that her child did not need to be suppported by the father and to decide to exclude their Paternal family.

      • To be clear, no one denied or denies his genetic relationship to the child. What was at issue was his legal relationship and the law in California does not recognize him as a legal father. That’s not particularly because of his promise–in general promises are not what make you a legal parent or what prevent you from becoming a legal parent. It’s because under CA law a man who provides sperm for the insemination of a woman he isn’t not married to does not become a legal parent.

        The name placed on the birth certificate isn’t legally binding, either. But it is evidence of what the two women intended at the time the child was born.

        I think you can tell a different story from these facts. Suppose the two women had an agreement to use a known donor and have a child they would raise together. Then they split up. The one who gives birth, who holds power by virtue of her genetic relationship to the child, seeks to exclude the other by calling in the known donor to claim rights. She may not have any interest in raising the child with him, nor he in raising the child at all. His appearance may be purely short-term and strategic. It may all simply be a device to exclude the woman who is not genetically related.

        I find this disturbing and, depending on when in the life of the child it occurs, potentially quite damaging to the child. The fact that one of the women can do this (at any time?) and garner support from those who assert the absolute primacy of DNA as a determinate of legal parenthood is, as I said in the earlier post, a powerful argument for choosing an unknown sperm provider.

    • That case was the subject of extensive discussion here back when it was happening:

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