Vermont Supreme Court upholds lesbian visitation rights

By Bob Roehr

The Vermont Supreme Court strongly asserted its jurisdiction in a case involving visitation rights to the child of two lesbians who had joined in, then dissolved their civil union. The issue also has been the basis of litigation in the state of Virginia, and a squabble over which state has jurisdiction.

Lisa and Janet Miller-Jenkins lived together for several years in Virginia before traveling to Vermont and entering into a civil union in December 2000. They pursued artificial insemination and Lisa gave birth to Isabella back in Virginia in April 2002. They moved to Vermont later that summer but after about a year the relationship broke up and Lisa moved back to Virginia with the child.

The pair began legal proceedings to dissolve the relationship and a judge awarded interim visitation rights to Janet. But Lisa later filed suit in Virginia, asking that Janet be declared to have no parental rights under Virginia law. She also "found" Jesus and no longer considers herself to be a lesbian.

Justice John Dooley, writing for the unanimous five-member Vermont Supreme Court, focused on the question of jurisdiction. He said that because the legal proceedings were initiated in Vermont, under the federal Parental Kidnapping Protection Act (PKPA), it was the court of jurisdiction.

He dismissed the attempt by Lisa's attorney with the conservative Liberty Counsel to invoke the Defense of Marriage Act (DOMA), the antigay federal law that restricts marriage to between a man and a woman. Dooley wrote, "This case is about whether the Vermont court must give full faith and credit to the Virginia court, and not the reverse".

"Unlike the PKPA, in no instance does DOMA require a court in one state to give full faith and credit to the decision of a court in another state. Its sole purpose is to provide an authorization not to give full faith and credit in the circumstances covered by the statute."

Liberty Counsel founder Matthew D. Staver told the New York Times the Vermont decision "tramples on parental rights and state sovereignty. Vermont "does not have the right to impose its same-sex union policy on Virginia."

Jay Squires, co-counsel for Janet, had a different interpretation. He told the Richmond Times-Dispatch, "I hope this decision sets a clear precedent that an activist can't overturn settled federal and state law governing custody disputes."

It is not clear that the Virginia legal system will recognize the Vermont ruling. The local court verdict has been appealed, and the Virginia Court of Appeals has deferred ruling until after the Vermont decision. Some observers believe the matter will end up before the US Supreme Court.

Meanwhile in Indiana, that state's Supreme Court voted 4 to 1 not to accept an appeal from a lower court that allowed for adoption by joint petition. That effectively allows same-sex couples to adopt with equal custody.

"The facts speak for themselves, two people can create a caring, stable, loving home for children without being married," said Patricia Logue, an attorney with Lambda Legal.

The ruling comes just a month after the Arkansas Supreme Court unanimously declared a ban on gays and lesbians serving as foster parents to be unconstitutional.

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