First-of-its kind parent custody ruling

This piece is cross posted at the Rutland Herald
By Brent Curtis Staff Writer – Published: November 21, 2009

Judge hands child to Vt. mother

A Rutland Family Court judge ordered a first-of-its kind parent
custody change Friday in a child-visitation dispute involving a
Virginia woman and her former lesbian partner who lives in Fair

In a 21-page order, Judge William Cohen granted sole custody of
7-year-old Isabella Miller to her nonbiological but
court-recognized parent, Janet Jenkins.

Jenkins and her former partner — and Isabella’s biological mother
— Lisa Miller, who renounced homosexuality after the couple split
in 2003, have been in and out of courtrooms in Vermont and Virginia
for years arguing over visitation rights.

Cohen’s decision doesn’t appear to spell an end to the fight either
— Miller’s attorney said Friday that appeal arguments will be
made on multiple fronts.

After finding Miller in contempt of court earlier this year for
denying Jenkins access to Isabella, Cohen said he decided the only
way to ensure the child equal access to both parents was to switch

“The court concludes that it is in the best interest of (Isabella)
that Ms. Jenkins exercise parental rights and responsibilities,”
the judge said. “This court stated that continued interference by
Ms. Miller with the relationship between (Isabella) and Ms. Jenkins
could lead to a change of circumstances and outweigh the disruption
that would occur if a change of custody were ordered.

While making it clear that Miller had been warned of a possible
custody change, Cohen said the switch wasn’t intended to punish the
Virginia woman. Instead, Cohen said the order was based on the
well-being of Isabella whose biological mother has only brought her
to two visits with her nonbiological parent during the last two

In the short term, the judge said the change would cause some
disruption in Isabella’s life as she would need to move to a new
home, school and community. However, Cohen said the transition
wouldn’t be out of the norm for a 7-year-old.

He also said the benefits of having access to both parents would be
worth the difficulties of change.

“In the long term, the change in custody will be in (Isabella’s)
best interests as she will have the opportunity for maximum
continuing physical and emotional contact with both parents,” he
said, adding that both parents were equal in terms of stability,
financial resources, emotional availability and other
considerations required for child rearing.

Where they weren’t equal, he said, was in their willingness to work
together. While Miller has repeatedly and consistently blocked
Jenkins’ access to Isabella, the judge said Jenkins has agreed to
allow Miller access and would allow Isabella to continue to attend
church events with her other parent.

Reached by telephone Friday evening, Jenkins said she wanted to do
what was best for Isabella.

“I don’t believe we need to be friends but I won’t block her from
Isabella,” Jenkins said of Miller. “I’ll definitely be supportive
of them. I want my daughter to have both of her parents.”

Jenkins said she’s looking forward to New Year’s Day when the
custody switch is ordered to take place.

“Honestly, I’m just a mother who wants time with my daughter,” she
said. “I can’t wait. I think my daughter will thrive here. I’m a
stay-at-home mom with state licensed day-care so I will be here,
and there will be built in playmates who are Isabella’s age.”

“I feel like all the ducks are lined up,” she added.

But the custody battle appears far from over.

Miller’s attorney, Mathew Staver, said Friday that Miller planned
to fight for her daughter on two fronts: appealing Cohen’s decision
to the Vermont Supreme Court while continuing a battle in the
Virginia Court of Appeals regarding the state’s authority to
enforce Vermont orders that conflict with Virginia’s laws.

“We’re certainly not happy with the order. I think Lisa is
devastated that the court would grant custody to Jenkins — a
person who Isabella doesn’t know. The only person known to her is
her mother,” said Staver, who is the founder and chairman of the
nonprofit Liberty Counsel. “We will ask the court to stay
enforcement while the appeal moves forward. It’s premature to set
dates while the appeal is pending.”

While the fight goes on, one legal observer said he believes
Cohen’s most recent decision will pave the way for future custody
disputes involving same-sex couples.

“It’s a very important decision that I think will be influential
beyond the borders of the states where these cases have been
argued,” Carl Tobias, University of Richmond professor of law, said
Friday in a phone interview from Virginia.

He said Cohen’s decisions thus far had staying power because they
treated the legal parents of civil unions — and by extension gay
marriages — no differently than parents in heterosexual custody

While the Vermont case appears destined for appeal and the court
battle in Virginia continues, Tobias said he didn’t think appeals
courts in either state would overturn the decision.

“They’ve already been to that court a couple times now,” he said
referring to Virginia’s court of appeals. “There’s a point at which
every court gets tired of people litigating when they have no valid
case to make.”