Vermont Supreme Court: Last Word on the Miller-Jenkins Custody Dispute?

On October 29 the Vermont Supreme Court issued its ruling unanimously affirming the decision by Rutland Family Court Judge William D. Cohen that it is in the best interest of minor child IMJ to be in the sole physical and legal custody of Janet Miller-Jenkins rather than Lisa Miller-Jenkins, her birth mother and Janet's former civil union partner.  It is uncertain what this will mean in the real world, as Lisa and the child have disappeared — at the oral argument, her attorneys disavowed any knowledge about where their client was located — and Lisa seems determined to prevent Janet from re-establishing a parental relationship with IMJ, even if that makes them fugitives from justice.

The decision was issued in the name of the court, signed by all the justices, without being attributed to any individual justice, with a brief additional concurring decision authored by Justice Marilyn S. Skoglund. 

Lisa and Janet, then residents of Virginia, formed a civil union in Vermont in December 2000, then decided to have a child together.  Lisa became pregnant through donor insemination, and the child was born in April 2002.  At the time, Lisa and Janet were living in Virginia, but they moved to Vermont in August 2002.  They raised the child together for the first 17 months of its life, but then separated, and in September 2003 Janet helped Lisa to move back to Virgina with the child, while Janet remained in Vermont.  Soon after this move, Lisa filed an action in Vermont Familiy Court to dissolve the civil union.  As part of that action, the court determined that Lisa should have legal and physical custody of the child, but Janet should have visitation rights.  However, it quickly became clear that Lisa was not enthusiastic about letting Janet continue in any parental role.  On September 2, 2004, the Vermont Family Court found Lisa in contempt for failing to comply with the court's visitation orders, as Janet had been thwarted in her attempts to visit the child and Lisa had interfered with telephone contact. 

Lisa, who renounced lesbianism and came under the sway of anti-gay Christianity, apparently decided that Janet should have no further contact with the child.  She brought suit in Virginia seeking to end Janet's rights, and also appealed the Vermont rulings.  In litigation proceedings in parallel in both states, their appellate courts concluded that the Vermont Family Court properly had jurisdiction of the child custody issue, Lisa having initiated the action in the Vermont court at a time when Janet resided in that state and Lisa and the child's residence there was recent, and that the Virginia courts would defer to the Vermont courts on the merits pursuant to a controlling federal statute on interstate custody disputes.  Once it became clear (with the U.S. Supreme Court refusing to get involved) that Lisa had little hope of cutting Janet out legally, she disappeared with the child as the final appeals went forward in Vermont.  Family Court Judge Cohen found, in the most recent hearing, that it was no longer in the child's best interests to be in the legal and physical custody of Lisa, who was determined to prevent Janet from any contact with her child, and ordered a change of custody, which Lisa's attorney's appealed.

In this October 29 ruling, the Vermont Supreme Court found no error in Judge Cohen's legal conclusions, noting the time that has passed since Janet has seen the child, and pointed out that before actual custody to Janet is finalized (pending discovery of where Lisa and the child are….), the Family Court should have another hearing to "reevaluate Janet's relationship with IMJ at that time and ensure a transition that comports with the law's intent to defend and protect IMJ's best interests."

At this point, the most interesting legal issue left in the case – Lisa's contention that despite Vermont's civil union act, which confers equal parental rights on Janet because the women were civil union partners when IMJ was born, nonetheless Lisa's constitutional rights as a birth mother would trump any claim Janet might have to custody — was not addressed on the merits by the court, which found that Lisa had failed to preserve this legal argument at an early enough stage in the litigation for it to be properly before the court. 

Judge Skoglund's concurrence questioned the trial court's conclusion that Janet "has a good relationship with IMJ" in light of the evidence, summarized by the trial court, that Janet has had virtually no contact with the child for several years, during which time it is likely that Lisa has not done anything to preserve that relationship — indeed, has probably been doing everything possible to extinguish it.  On the other hand, she noted the serious problem of parental kidnaping, and concluded that this finding on the quality of Janet's relationship with the child was not dispositive of the Family Court's conclusion on the merits that it was in the best interest of the child to be placed in Janet's custody, noting that a further hearing will be held before a transfer takes place to determine the current state of the relationship and how best to effectuate the transfer. 

Gay and Lesbian Advocates & Defenders have been by Janet's side through this ordeal.  The court designated the case for publication, but it had not shown up on the Westlaw database by November 4 (although at least one other decision released by the court on the same date was already available on Westlaw). 

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