Gay & Lesbian Advocates & Defenders

Celebrating 30 years as New England's leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression.

Our Work Cases Miller-Jenkins v. Miller-Jenkins

Miller-Jenkins v. Miller-Jenkins

Pending • Vermont • Parents & Kids • Relationships • Representing Plaintiff(s)

Miller-Jenkins v. Miller-Jenkins

Since 2004, GLAD has been representing Vermont resident Janet Jenkins for all appellate matters in an ongoing dispute with her former civil union spouse, Lisa Miller, over the shared parenting of their daughter, Isabella. The couple separated in 2003, and Lisa moved to Virginia with Isabella. Lisa also began an action in Vermont Family Court to dissolve the couple’s civil union and adjudicate custody and visitation. Lisa is represented by Liberty Counsel.

The Vermont Family Court ruled in 2004 that Janet is a legal parent of Isabella and is entitled to visitation rights. Faced with those rulings, Lisa refused to comply and commenced a separate action in Virginia where she obtained an order that she was the sole parent of Isabella. Janet also filed an action in Virginia, represented by Attorney Joseph Price and Lambda Legal, taking the first steps toward enforcement of the Vermont visitation order in the Virginia courts. The first of the Virginia actions was completed with an appellate ruling that Virginia had no jurisdiction to rule on Janet’s parentage and that Virginia had to honor the Vermont visitation order. The second of those actions advanced to the Virginia Supreme Court where oral argument was heard in April, 2008.

Meanwhile, in Vermont, in September 2006, the Vermont Supreme Court upheld the Vermont Family Court’s rulings that Janet is a legal parent of Isabella; that Vermont was not required to honor the contrary Virginia ruling; and that Lisa was properly held in contempt of court for failing to obey the Vermont Court’s visitation order. Lisa sought review in the United States Supreme Court, which refused to hear her case in April, 2007.

On June 15, 2007, after trial on the merits, the Vermont Family Court Judge William Cohen entered findings of fact and rulings of law dissolving Janet and Lisa’s civil union; dividing their property; and ordering regular parent-child contact between Janet and her daughter. Once again, Lisa appealed these final orders to the Vermont Supreme Court, which held oral argument in the case on March 13, 2008 and summarily affirmed the Family Court’s final orders the next day, March 14, 2008.

The Virginia Supreme Court in June, 2008, affirmed that Virginia must honor the 2006 Vermont visitation order; and Janet’s Virginia attorneys have filed to enforce the order. On August 15, 2008, Lisa lost an action arguing for sole parental rights based on Virginia’s anti-marriage amendment, and simultaneously filed a request for review of the second Vermont Supreme Court ruling by the U.S. Supreme Court, which was denied. She followed these losses with a further petition at the U.S. Supreme Court to review the second Virginia Supreme Court ruling, which was likewise denied on December 8, 2008.

Liberty Counsel, representing Lisa, has now appealed a recent Vermont Family Court order once again finding Lisa in contempt for failing to comply with outstanding visitation orders. They also have what they assert is a new action in Virginia challenging Janet’s parental rights under the state’s constitutional DOMA, claiming that because the amendment went into effect while they were pursuing their previous challenge, the August, 15, 2008, loss applies only to the statutory DOMA.

Meanwhile, Lisa continues to violate the Vermont court’s order by refusing to provide visitation, and has filed a motion to annul visitation on the grounds that it is harmful to Isabella. We anticipate a hearing on this matter soon.

Case timeline.

Case News

Vermont Supreme Court Upholds Visitation for Janet Jenkins and Daughter

March 17, 2008

Vermont’s highest court issued a ruling on March 14 upholding visitation rights for Janet Jenkins and her five-year-old daughter, Isabella. Isabella’s biological mother, Lisa Miller, Janet’s former civil union spouse, challenged Janet’s parental rights in a case that has been ongoing since the couple separated in 2003. Lisa and Isabella now reside in Virginia, where Lisa is also pursuing legal action to block Janet’s ongoing relationship with their daughter.

This latest and second decision...

GLAD served as co-counsel on behalf of Janet Miller-Jenkins, a Vermont woman seeking visitation with her daughter. Janet is seeking visitation as part of the dissolution of her civil union sought by her former partner and the little girl’s biological mother, Lisa Miller-Jenkins.

When Lisa filed the dissolution action in November 2003, the Vermont Family Court granted Janet visitation rights with her two-year-old daughter while the case proceeded. Lisa, having moved to Virginia with the child, responded by filing a new action in that state to declare herself the only legal parent and to block Janet’s visitation.

Lisa filed the Virginia action on the day Virginia’s anti-gay Marriage Affirmation Act went into effect, using funds from the Center for American Cultural Renewal - a group working to repeal Vermont’s civil union legislation - to support her legal efforts.

The dispute led to a jurisdictional squabble between the Vermont and Virginia courts, effectively pitting Virginia’s Marriage Affirmation Act against Vermont’s civil union law. GLAD represents Janet in Vermont, along with local practitioner Theodore Parisi, while Lambda Legal is representing Janet in Virginia, along with attorney Joseph Price.

“What this case boils down to is this little girl’s right to retain her relationship with her mother Janet”, said GLAD staff attorney Karen L. Loewy. “This is a child born during the party’s civil union. Under Vermont law, Janet is the child’s parent. Lisa does not have the right to deny her access to the little girl they jointly brought into the world.”

Despite the simplicity of this core issue, the Virginia court and Lisa’s lawyers (from Liberty Counsel, one of the groups that attempted to undermine the Goodridge decision in Massachusetts) are determined to create specious complications. Under both federal and state law, when the court of one state has been validly presented with issues relating to child custody, that court keeps jurisdiction until it voluntarily releases the case. Despite the fact that the Vermont court has retained jurisdiction over the issue of both Janet and Lisa’s parental rights and responsibilities and has never relinquished jurisdiction, the Virgina court initially ruled that Lisa is the sole parent, and ignored the Vermont court’s visitation order, on the basis of Virginia’s stated policy of discrimination against civil unions.

Because Lisa failed to comply with the Vermont Family Court’s visitation order, the Vermont court held Lisa in contempt. Further, the Vermont court issued a ruling declaring Janet to be the girl’s legal parent, as the child was born while Janet and Lisa were legally joined in a civil union. Finally, the court rejected an attempt by Lisa to have the Vermont courts recognize and enforce the Virginia ruling declaring Lisa to be the sole legal parent. Lisa petitioned the Vermont Supreme Court which, in September, 2006 - in a tremendous victory for Janet and GLAD - upheld all three of these rulings. Furthermore, the Virginia Appellate Court has since decided that Virginia had no jurisdiction to entertain Lisa’s suit to be declared IMJ’s sole parent, and has ordered the Virginia Courts to comply with the Vermont visitation order. Lisa’s petition for review by the US Supreme Court was denied on April 30, 2007; she is currently seeking review in the Virginia Supreme Court.

While this case is one of the first to address what happens when a family granted a formal legal status in one state encounters the discriminatory policies of another, it is by no means likely to be the last. Yet it seems that courts will have little patience for parents who attempt an end-run around that status. As Judge Cohen of the Vermont Family Court stated in issuing the contempt ruling, “The judicial system as a whole simply cannot allow parties to try to take advantage of legal and cultural differences which may make one state favor the position of a particular party over another.”

Print Page