Quick Update on VT/VA Custody Case Criminal Trial

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.



21 responses to “Quick Update on VT/VA Custody Case Criminal Trial

  1. The US, obviously, is required to enforce the court order. They can’t pick which orders to enforce. I am not sure what a foreign country would do if the Millers were found there, since some countries will not extradite for this, and the country they may be in supposedly didn’t sign the Hague Convention. But personally? I think the child gets a bad outcome either way at this point. I don’t believe her life where she is sounds good, and at this point, since if they are ever found she’d be nearly a teenager by the then, I doubt she’d be happier with Jenkins eithar at that point. So I just feel bad for Isabella, no matter what happens.

    • I agree that a child in a situation like this is in an unfortunate spot. I believe Nicaragua (which is where Miller is) will not extradite to the US. Indeed, that is apparently why it was the chosen destination.

    • Why is everyone assuming that Isabella has a horrible life? Why shouldn’t she be happy in nicaragua?

      • I don’t think we know about her life in Nicaragua. I suppose one question is whether we need that information before we can decide what to do in this case. Would Isabella’s current happiness (and I think happiness may be slightly different from well-being) determine whether Miller’s conduct is right/wrong?

        I’ll go back to the description from the NYT of what Isabella’s life is like:

        “Now 10, Isabella Miller-Jenkins has spent her last three birthdays on the run, “bouncing around the barrios of Nicaragua,” as one federal agent put it, a lively blond girl and her mother trying to blend in and elude the United States marshals who have traveled to the country in pursuit.

        She can now chatter in Spanish, but her time in Nicaragua has often been lonely, those who have met her say, long on prayer but isolated. She has been told that she could be wrenched from her mother if they are caught. She has also been told that the other woman she once called “Mama,” Ms. Miller’s former partner from a civil union in Vermont that she has since renounced, cannot go to heaven because she lives in sin with women.”

        It may well be that Isabella is happy–children are incredibly resilient. But I’m not convinced that this is a terrific way to raise a child. I’m not convinced that in the long run this is good for Isabella. (I should note that Jenkins has always been willing to share custody with Miller and so honoring the outstanding custody order would not terminate Miller’s relationship with Isabella. Of course, since Miller has now violated a number of laws, there might be some prison time in her future if she is caught. But if you remember back to some earlier discussions here, parent/child relationships can certainly survive that.)

      • It’s possible I am assuming wrong, I suppose, but she has to live under another name, move a lot, she isn’t fluent in the local language (but can speak some Spanish now), she may not be able to have any friends, she can’t attend school, she’s probably home with just her mother most of the time. It doesn’t sound like a great life for a kid but perhaps she is doing well anyway.

  2. But I do find it unfortunate that based on the facts of the specific case, if they are found, the change of custody will do more to punish Miller than benefit the child. Now, the judge’s hands were tied, I suppose – since Jenkins was legally a parent, and the law says a child’s best interests are always served by a relationship with the parent, he had to rule that was in Isabella’s best interests, even though I think many (including me) could easily say it’s not – that even absent the religious angle, Isabella likely would not have felt she was missing a parent since she lacked both emotional and biological connections with Jenkins, and therefore her interests were not being harmed by not having a relationship with her. But I definitely disagree with the law in the first place. Regarldess of gender or orientation, someone with whom the child has neither a biological nor psychological/emotional relationship with would never have any claim to custody in my ideal world. One can sometimes make up for the other, but when neither is present… it’s just wrong and cruel to the child and only benefits the adult, in my opinion.

    • Are the specific facts you’re thinking of that the breakup was when the child was under 2? One could have a rule that where parents split up and the child is very young, and where the parents don’t agree, one parents get full custody and the other gets nothing. Many have actually proposed this–suggesting that the loss the child experiences, however severe, is over and done with and then the child can move on. But no state has ever even come close to a rule like this–and that’s because we aren’t guided purely by the best interests of the child. Parents–recognized legal parents–have rights, too. And so you get long litigation and bitter custody fights and all the rest.

      I see your point, but if I were to go where you are going, I’d leave out biology, too. If someone has no psychological/emotional relationship with the child, perhaps they shouldn’t be a legal parent. For me, this would be true whether they have genetics to fall back on or not. After all, what does the child know of genetics.

      And for what it is worth, I’m not at all convinced that Jenkins had no emotional/psychological relationsip with the child. She certainly doesn’t now, but from what I’ve read, I think it likely she did have exactly that relationship. It’s just that Miller’s actions (and time) destroyed it. They coparented for the first 18 months of the child’s life and I think that is actually plenty of time to create the sort of relationship I think we’re talking about.

      • Yes, the fact that the child was very young when they broke up was what I was referring to. A relationship that ended when the child was so young that they have zero chance of remembering it at all will probaby not mean much to the child, unless they feel they are missing out on something. And where we would disagree here is that I think in a case where the child is separated from a parent at an early age and can’t remember, they are more likely to miss their presence anyway if they are a biological parent – because at least they can form some connection in their mind and it will make at least some sense to the child.

        • I’m just not sure this is true about young children. My daughter was one when her other mother died. I think she experienced and continues to experience loss.

          The whole thing about what kids remember is tricky. Remember all the discussions about being honest with kids about their origins. I suppose I could lie to my daughter and deny that this other person ever existed and maybe she wouldn’t have memories to the contrary. But that’s fundamentally dishonest and she will, in the end, find out. Then not only will she have to deal with the loss, she’ll have to deal with the fact that I lied.

          What do you suppose Miller is telling Isabella about Jenkins? Should Miller lie to Isabella and pretend Jenkins never existed? What does Miller tell Isabella about why they live their lives under other names in another country with only clandestine contact with relatives here in the US and the occasional sudden move?

          I don’t know, of course, but it seems to me that just as a parent who uses third-party sperm needs to be honest with a child about that decision, Miller needs to be honest with Isabella about the circumstances of her conception and birth and flight from the US.

          • Seems that Isabella already knows of Jenkins existence. She knows that they are on the run because a judge awarded custody to Jenkins. She probably is aware that her mom and Jenkins did live together when she was a baby, such information is necessary to explain the story at all. But does she even have to know what a lesbian is?

      • I was referring to Isabella’s perspective here and not Jenkins’. Jenkins obviously still feels a bond. Isabella likely does not, and I think time alone would have done that even if Jenkins had not been mentioned negatively by Miller at all and Isabella was entirely unaware of the circumstances behind her being taken out of the country by Miller. And again where we different here is whether genetics would have made a difference. I think a child missing one of their genetic parents might wonder where they came from, if their parent is like them or not. I think the chances of that are at least higher than the chances of a child caring about someone they no longer remember, that only took care of the child as an infant, and that is also missing the biological link – so there’s none of that wondering either. But I suspect the sample size of “children separated from a non-biological parent at a very early age” is too small to get any kind of real data about whether that loss was generally negative for the children, neutral, or positive.

  3. Agreed with Rebecca. Once the law has been decided, the court has to abide by it, because societal interest in law and order outweighs the damage to this particular family.
    But when situations like that occur, it behooves us to examine the law itself; is the law a generally good law and this case an unfortunate exception, or is the law itself flawed?
    My opinion is the legal decision itself was flawed

    • You mean the underlying law that recognized Jenkins as a legal parent, right?

      The question is when and how one raises questions about the underlying law. Do you get to do that by snatching the child in violation of the court order? The order was issued after years spent litigating the question of the underlying law in courts in two different states–both of which agreed in the end that Jenkins is a legal parent. Who gets to decide that, the courts not withstanding, the underlying law is flawed and therefore the order can be ignored? Miller already went through the process to challenge the law–great length and with the assistance of counsel. She lost.

      You can certainly advocate that the law should be changed, (I take it you would say that legal parentage should not be conferred via marriage/civil unions?) but it seems to me that violating the court order after all the litigation occurs is not the right process for changing law.

  4. “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.”

    The saddest example of this was when Pensacola, FL Judge Tarbuck gave custody of a little girl to her father instead of her mother (Ward v. Ward) because the mother was a lesbian. The father was a convicted murderer. He killed his first wife by shooting her when she asked for a divorce. During the shooting, he emptied his revolver into her, reloaded, and emptied the revolver into her a second time – all while she begged for her life. Just a peach of a fellow. But, apparently, to Judge Tarbuck, being a lesbian was worse offense. This was only about 15 years ago.

    • While I side with Miller (because I do not view unrelated former partners, male or female, as parents) I agree it is reprehensible that her helpers are doing this as an anti gay thing, after all these are the same folks that have no problem removing children from their biological parents to place them with straight married couples

      • I agree. I do hate how this case has been politicized, but my opinion would be the same regardless of the genders or sexual orientations of those involved.

      • There are a lot of conflicting points of view on this story, and I can have compassion for all of them. Being a religious person, I can see the mental path one might take to get to where keeping that other parent from the child is the “right” thing to do, in the interest of that child’s spiritual well being. Many religions take a standpoint that without accepting their doctrine, spiritual salvation in the next life is impossible. From that standpoint, I could absolutely see where someone would conclude “It may not be fair to keep this person away, but I’m doing it for their own good in the long run.” It is truly a logical, and in the mind of the person who truly believes that their child’s spiritual survival depends on them being taught “correct” principles, a valid and necessary factor in the decision making process. Discovering (or realizing) that the other parent will absolutely be teaching things contrary to what they believe is good and wholesome for the child. This is problematic when their conversion to their current belief system occurs after obtaining a child with the other parent, whether naturally or not. The obvious, and somewhat heartless response to such a situation is, “DON’T! Don’t have children with people you are not fully confident you want to be with for the rest of your life, and to whom you are not legally bound to.” Good in theory, but not always practical in real life.
        Then, you have to consider the viewpoint of the parent getting left in the dust. When you enter a relationship with someone who has a child already, or who conceives one as part of their “family” they’ve built with you, whether you are a blood relationship to that child or not, you prepare yourself to commit yourself fully to loving that child. This is, of course, speaking of the “ideal” nongenetic other parent, whether a stepparent, adopted parent, union participant or whatever. Mentally, to do right by that child, you have to get yourself to a place where your love for that child is not contingent upon your love for their parent remaining intact. I have a stepdaughter with my husband, and while her mother is in every way her mother and I would never attempt to take that from her, I will always love her, no matter what. Death or divorce, she will always be able to turn to me for support, love, guidance, or anything she needs from me, regardless of what happens between her father and me. I, like many “good” parents do not put conditions on my ability to love a child, whether my own genetic child or a child linked to me through marriage. Assuming this is true for more nongenetic parents out there, and that they have done everything in their power to love that child as though he/she was their own, bond with them, sacrifice for them, put their needs ahead of their own, etc. is it really right to disregard that relationship? I’d be devastated if my stepdaughter’s mother suddenly said my children (her half-siblings) and I couldn’t see her because we had no “legal” right. I would still think of her, ache for her loss, want the best for her, and be willing to be there for her if she needed me. Diminishing the capacity of a person to love in the eyes of the law serves only to make stepparents reluctant to develop that bond in the first place, believing they will be treated as nonentities under the law. The primary person such an attitude hurts is the child, because they are prevented from being able to trust that someone can choose to love them and have it be as unconditional as the love their biological parent(s) have for them. The courts have in recent years begun to recognize this as being true, and hold that any person who takes it upon themselves to take on a parent role in a child’s life has an obligation to love and support that child, and from this point of view, I absolutely agree. The time to decide whether you wish to be in that role is before you take on the responsibility, not after. My stepdaughter tells people I don’t know that she has a stepmom, that it’s awesome, and that she loves me. Luckily her mother views that as positive, and that her daughter will be loved when she’s at her dad’s house, and that her interests will be carefully guarded.
        Finally, and I’ve touched on it a little already, but most importantly, is the viewpoint of the child. No parent who truly has their child’s best interests at heart should be so wrapped up in their own pain and anger over a failed relationship that they are willing to use their child as a tool to hurt the other parent. They need to make the decision before having a child (or bringing the other partner into the child’s life) whether that person can be trusted to coparent with them. Children are deeply affected by losing these people, even as babies. My husband was out of the picture for about six months when my second son was a baby. When he returned, he couldn’t leave the room without a screaming fit and my son acting like he was never coming back. He still suffers emotional problems from it that I can see and he’s almost 8. Children bounce back, but they do feel the absence in their lives and are deeply affected by it even when you can’t see it. Absent evidence of abuse or neglect, cutting the other parent out of your child’s life is cruel and selfish, and I would be suspicious of anyone willing to do so.

        • These are really important observations. It’s possible that people on opposite sides of these sorts of conflicts all think they are acting in good faith–depending on the assumptions they start with. I suppose one thing that tell us is that we ought not to good faith or absence of good faith the only determinant.

          I think (and I think you say this) that ultimately we need to care most about the viewpoint of the child. But the problem here is that even considering that pov you could have disagreement based on assumptions. Thus, the person guided by a religion that says what one parent is doing is morally evil might say that it is best for the child to be shielded from this person no matter what the cost. If you agree with the principle, perhaps that is true. But if you do not accept the principle, then you confront the costs you mention–the disruption of existing relationships. If you think those costs are important, then you reach a decision.

          I don’t mean I think that it is impossible to decide these cases–they can and must be decided. But in the end, a lot of it comes down to the sorts of things we decide are important and those decisions are essentially value choices, I think.

  5. She’s with her mother it does not matter where they go she’s home she’s with her mom.

    • Morally, I agree – she belongs with her biological mother. But, I still think the circumstances of how she has to live currently are crappy for a child.

  6. I see that he was convicted. Score a victory for justice.

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