Court: Ruling stands in lesbian custody case
By LARRY O'DELL The Associated Press | June 07,2008
RICHMOND, Va. Virginia's highest court ruled Friday that the state must enforce a Vermont court order awarding child-visitation rights to a mother's former lesbian partner.
The Virginia Supreme Court rejected Lisa Miller's claim that a lower court improperly ignored a Virginia law and a state constitutional amendment that prohibit same-sex unions and the recognition of such arrangements from other states.
The ruling was a victory for Janet Jenkins, who has been fighting for visitation rights since the dissolution of the civil union she and Miller obtained in Vermont in 2000. In 2002, Miller gave birth to the daughter, Isabella, who now is at the center of a legal battle closely watched by national conservative and gay rights groups.
Miller renounced homosexuality and moved back to Virginia with the child after the couple split, and she has fought Jenkins' visitation efforts. However, the Supreme Court ruled that a federal law aimed at preventing parents from crossing state lines to evade a custody ruling requires Virginia to enforce Vermont's order.
"I'm relieved that this tug-of-war with my daughter is over," Jenkins said in a statement released by the gay-rights group Lambda Legal. "This has been a very long four years. My daughter and I need some time to be together. She needs her other mom."
Miller's attorney, Mathew Staver, said his client "has not lost her courage or her resolve" and will pursue other legal options. Staver, founder of Liberty Counsel and dean of the law school at the late Rev. Jerry Falwell's Liberty University, said he hopes to raise the issue of Virginia's constitutional amendment banning same-sex unions in a new proceeding.
Jenkins' attorney, Joseph Price, said the decision "is fully consistent with Virginia, Vermont and federal law" on child custody and visitation matters.
"More important, the decision means that Isabella will have the support of both her parents as she grows up and that gay and lesbian parents can expect that they will be treated just like any other parents in a custody dispute, regardless of their sexual orientation," he said.
The Virginia Court of Appeals twice ruled in favor of Jenkins. Miller's attorneys missed a deadline for appealing the first ruling to the Virginia Supreme Court, so they filed a second appeal on different grounds. The appellate court ruled that the second case raised no new issues, and the Supreme Court agreed. In 2006, the Vermont Supreme Court also ruled in favor of Jenkins.
Miller's supporters were encouraged a brief concurring opinion written by Virginia Chief Justice Leroy Hassell Jr., who said he disagreed with the appeals court's first decision but agreed the justices could not consider the merits because the appeal was filed late.
"I see that as a red flag practically begging the attorneys to go back and file again because the issues at question were not considered," said Matt Barber, policy director for cultural issues for the conservative Concerned Women for America. "It's a temporary setback, but it's not over."