I’ve been teaching law for nearly five years now and during that time I’ve introduced the Miller v. Jenkins debacle to countless students. And prior to teaching, while I was a student myself, we talked about the Miller v. Jenkins case in class. So you can see that this has been going on for a very long time, judging by the depth of the wrinkle in my forehead.
If you’re not familiar with the Miller v. Jenkins case, I’ll bring you up to speed. Janet Jenkins and Lisa Miller were once a happy couple. The pair met in Virginia in 1997 and were united in civil union in Vermont in 2000. In 2002, Lisa and Janet decided to have a child and Lisa was impregnated through in vitro fertilization after both Janet and Lisa chose a donor. When Lisa gave birth later that year in Virginia, Janet was in the room.
The new family then moved to Fair Haven, VT so they could raise their family in a state that sanctioned their civil union. In 2003, Lisa attempted to get pregnant again, but suffered a miscarriage. In September of 2003, Janet and Lisa separated with Janet signing a promise to pay child support and an agreement that she would stay in her daughter’s life. In 2004, a Vermont court formally dissolved Janet and Lisa’s civil union and granted custody to Lisa with visitation rights to Janet.
This all seems pretty standard, right? Even if we look at it through a lens of heteronormativity – pair are married, have a kid, get divorced, custody to utero-mom with visitation to “dad”.
But things got ridiculous. Lisa moved to Virginia, a state that does not recognize civil unions or same-sex marriage. Even so, Janet would drive from Vermont to Virginia to visit her daughter, often making the ten-hour trip only to discover that Lisa had “disappeared” with their daughter before Janet got there. Lisa continued to block Janet’s visits until she teamed up with lawyers from Liberty Law School, Reverend Jerry Falwell‘s law school in Virginia, and filed suit in Virginia court seeking to determine that Janet is not a parent and is therefore not entitled to visitation or any parental rights.
Because of the federal Defense of Marriage Act, which allows individual states to define marriage as between a man and a woman, Virginia was free to say no to same-sex marriage. And because of the DOMA, Virginia could also refuse to recognize a same-sex marriage valid in another state. As a result, Lisa, her attorneys, and Reverend Falwell could all argue that Janet should not be considered a parent to Isabella because Isabella was the biological daughter of Lisa and not Janet. In addition, Lisa’s legal team could argue that Janet should have no rights to Isabella because there was no valid union between Lisa and Janet.
Initially, the Virginia court sided with Lisa and said that Janet was not a parent to Isabella. So Janet didn’t see her daughter for 2 years.
Now, everyone knows that family law issues are messy, but they are especially messy for same-sex couples because a lot of our legal assumptions in custody and parenting issue are based on heterosexual relationships. For example, if a man and a woman are legally married and the woman has a child, it is legally presumed that the husband is the father. Presumptions like that don’t necessarily exist for same-sex couples.
Not only that, but with custody and divorce disputes there are all of these rules that lay out where you can bring your case. And if you bring your case in the wrong state, that court can’t make a decision… even if that court is Virginia and wants to make a point to preserve heterosexual marriage.
And that’s what happened here. The Virginia Supreme Court ruled that Vermont still had jurisdiction over the custody dispute, regardless of DOMA and Virginia’s stance on same-sex unions. So the case goes back to the Vermont court and they set up a new schedule of visitation for Janet and Isabella.
But Janet never got to see her daughter. Lisa began blocking visits. And once the Vermont court threatened to transfer custody to Janet because of Lisa’s failure to follow court orders, Lisa and Isabella disappeared. With the help of Kenneth Miller, a Mennonite minister from Virginia, Lisa and her daughter fled to Nicaragua .
And Janet hasn’t seen her daughter since.
On Tuesday, Kenneth Miller was convicted of orchestrating Lisa and Isabella’s disappearance and faces up to 3 years in prison. That same day, Janet’s attorney’s filed suit against Lisa Miller, Reverend Falwell, Liberty University School of Law, Falwell’s related ministries, and several individuals who helped Lisa and Isabella escape. The lawsuit alleges violations of RICO, the federal Racketeer Influenced and Corrupt Organizations Act, by the defendants through conspiring to and carrying out kidnapping, money laundering, and mail fraud.
Lisa and Isabella are thought to be somewhere in Nicaragua, but their exact whereabouts are unknown. Interpol and the FBI have gotten involved and there are a whole bunch of lawyers on either side fighting back and forth. But at the end of the day this whole mess has just one result.
Janet Jenkins is unable to see her daughter.
- Va. pastor guilty in same-sex union custody case (news.yahoo.com)