An Interesting Article

States Clash Over Same-Sex Parental Rights

Dee McAree

The National Law Journal

09-20-2004

Four years ago, when courts in Vermont began recognizing the legality of same-sex civil unions, it was only a matter of time before cases came along to test whether sister states would give full faith and credit to those decisions.

The time has come.

One of the earliest cases to raise that issue is a same-sex parental rights challenge that has provoked a jurisdictional debate between Virginia and Vermont. According to an attorney for New York-based Lambda Legal Defense and Education Fund, it is also one of the earliest cases to test how state courts will respond to orders that derive from the legality of civil unions.

At the heart of the suit is a 2-year-old girl who was born to a lesbian couple, Lisa Miller-Jenkins and Janet Miller-Jenkins, through artificial insemination. The couple entered a civil union in Vermont in 2000, but sought to dissolve the union in a Vermont court in July 2003.

A Vermont family court judge issued a temporary order giving parental rights to Lisa, the child's biological mother, and visitation to Janet. Lisa Miller-Jenkins v. Janet Miller-Jenkins, No. 454-11-03RcDMd (Rutland Co., Vt., Fam. Ct.).

But Lisa, in contempt of the order, took the child to Virginia, where the baby was born. A Virginia judge then granted her sole custody of the child. Lisa Miller-Jenkins v. Janet Miller-Jenkins, No. CH04-280 (Frederick Co., Va., Cir. Ct.).

"Lisa had every right to go to her resident state to have parentage determined," asserted Judy Barone of Readnour & Barone in Rutland, Vt., her lawyer in the Vermont action. Barone concedes that Vermont's civil union statute affords the couple all the same rights as a marriage. However, she asserts that Lisa, as any married woman, had the right to contest Janet's claim of parentage. The Vermont court, over Lisa's objections, relied on a rebuttable presumption that Janet was a parent, Barone said.

"[Lisa] only filed a Vermont action to dissolve a civil union," Barone said. "That action did not give the Vermont court the right to determine parentage."

MAINE WEIGHS IN

Others disagree, pointing out that courts in states where civil unions are not legal have held that a same-sex nonbiological parent can have rights as the functional or psychological parent.

In April, the Maine Supreme Judicial Court said that a former domestic partner was the "de facto parent" of a minor child who was born through artificial insemination during the couple's relationship. C.E.W. v. D.E.W., No. 02-534.

Phyllis Bossin of Cincinnati's Phyllis G. Bossin Co., who chairs the Section of Family Law of the American Bar Association, said Virginia was not compelled to recognize the civil union in order to recognize Janet's claim of parentage.

"The civil union doesn't create the parental relationship," said Bossin. "The relationship is creating the parental relationship." She added that the child's birthplace has no bearing on jurisdiction, nor will a federal court step in to resolve jurisdiction.

The resolution will likely come in Virginia, where Janet's lawyers have filed an appeal, said one of her lawyers, Theodore A. Parisi Jr. of Castleton, Vt. Parisi compared the varying laws on same-sex unions to gambling, noting that courts in states that outlaw gambling will uphold a judgment on a gambling debt from Nevada.

Couples joined in a civil union in Vermont must live together for one year before the state will dissolve it, according to Greg Nevins, a senior staff attorney in Lambda's Atlanta office.

Nevins asserted that Virginia could have and should have stayed out of the case, instead of applying its own substantive law. He expects a higher Virginia court will overrule, invoking the federal Parental Kidnapping Prevention Act.

"The whole purpose behind the [kidnapping act] is to prevent parents from when it's not going well in one state to file in another," Nevins said. In assuming jurisdiction, the Virginia court said it derived its authority from the state's Affirmation of Marriage Act, enacted last year.

According to Lambda, 40 states have passed laws prohibiting same-sex marriage since President Clinton signed the Defense of Marriage Act in 1995.

Only three states recognize same-sex unions. They are Vermont; Hawaii, which offers reciprocal benefits; and Massachusetts, which allows same-sex marriage.