MONTPELIER, Vt. - Battles over the custody of children between estranged spouses are nothing new. But this one involves a child born to a lesbian couple in a since-dissolved civil union.
The case might end up in the U.S. Supreme Court because it produced dueling court rulings in Vermont, the first state to legally recognize same-sex relationships, and Virginia, which has a law saying that neither same-sex marriages nor civil unions carry the force of law in that state.
The case comes up for argument before the Vermont Supreme Court tomorrow and before the Virginia Court of Appeals a week later. Supporters and detractors of same-sex marriage and civil unions say that whatever the outcome, the case could become a landmark in the debate over what laws should govern same-sex relationships and the children born to them.
"This case has significant implications for a number of reasons," said Mathew Staver, a lawyer with the Florida-based Liberty Counsel, which opposes same-sex unions.
He said there have been other cases in which out-of-state courts have been asked to grant dissolution of Vermont civil unions and have refused because their states don't honor such unions. But in this case, he said, "you have two state laws clashing for the very first time."
If the fight goes to the U.S. Supreme Court, "this would have major precedential value," he said.
Jennifer Levi, a lawyer with Gay and Lesbian Advocates and Defenders who will represent Janet Jenkins at tomorrow's hearing, called that kind of speculation premature. She hopes both courts will allow her client visitation with the child at the center of the controversy.
Jenkins, 40, and Lisa Miller, 36, both Virginia natives, went to Vermont in 2001 to get a civil union and returned home. Miller got pregnant by artificial insemination and gave birth in 2002 to a girl they named Isabella.
They later returned to Vermont, where they lived for a little more than a year before breaking up. In filing for dissolution, Miller filled out paperwork indicating that Isabella was the child of the civil union, a fact that Jenkins' team is using to argue that under Vermont law, Jenkins is a parent of Isabella.
Miller later changed her mind and asked Rutland Family Court Judge William Cohen to find that she was Isabella's sole parent. The judge denied her request and granted Jenkins visitation, even though she never formally adopted Isabella.
Miller appealed to the Vermont Supreme Court. She also moved back to Virginia and won a declaration in that state's courts that she was Isabella's sole parent, with no obligation to Jenkins for visitation or anything else.