The
judge in Vermont ruled that the women should "be treated
no differently than a husband and wife." He established
a visiting schedule and held the biological mother, Lisa
Miller, in contempt of court when she failed to comply
with it.
The
judge in Virginia ruled that Ms. Miller had the sole
right to decide who could see the child. He ruled that
the former partner, Janet Miller-Jenkins, had no
"parentage or visitation rights."
Legal
experts say the decisions, which reached State Supreme
Court here on Wednesday, are the first to present a
direct conflict between two state courts on a
substantial legal question arising from a same-sex
couple's union. The decisions offer a preview, the
experts added, of what are quite likely to be many
similar conflicts around the nation.
Ms.
Miller moved back to Virginia, where Isabella was born,
in September 2003. The couple had visited Vermont
briefly for the civil union ceremony in 2000 and lived
there for more than a year after Isabella was born in
2002.
"When I
left Janet," Ms. Miller said in a telephone interview,
"I left the homosexual lifestyle and drew closer to
God."
Ms.
Miller-Jenkins, who declined to be interviewed, has said
the couple planned and cared for Isabella together. She
read a statement outside the courthouse after arguments
on Wednesday.
"I
sincerely believe," she said, "that it is best for my
daughter that both of her parents continue to be an
active, loving, responsible part of her life."
The
justices here were largely skeptical of the arguments
offered by a lawyer for Ms. Miller, who, like her former
partner, had been known as Ms. Miller-Jenkins. The
justices also indicated that they were working in
uncharted territory.
"The
assisted reproductive technologies are galloping ahead
of existing law," Justice Marilyn S. Skoglund said.
A few
minutes later, Justice Denise R. Johnson asked about the
consequences of inconsistent rulings. A lawyer for Ms.
Miller-Jenkins, Jennifer L. Levi, said the question was
premature. A Virginia appeals court will hear arguments
in that suit next Wednesday.
"I'm
just trying to figure out what the effect of our
decision is," Justice Johnson said, in a tone suggesting
it might have no effect because Isabella and Ms. Miller
live in Virginia.
The
cases involve the interaction of two sets of laws. At
the state level, Vermont and Virginia have laws that say
the first court to take jurisdiction of a custody case
should make the final determination. That would seem to
help Ms. Miller-Jenkins here.
In
November 2003, it was Ms. Miller, the Virginian, who
filed papers in Vermont to dissolve the union. In them,
Ms. Miller acknowledged that Isabella was a child of the
union and asked the court to allow her former partner to
have contact with the girl. Her lawyers have since taken
varying positions. Ms. Miller now says she was confused
and did not mean to acknowledge any parental
relationship between her former partner and Isabella.
A 2004
Virginia law, the Marriage Affirmation Act, makes
same-sex unions from other states "void in all respects
in Virginia." Judge John R. Prosser, of Frederick County
Circuit Court in Winchester, Va., relied on that law in
October in granting sole custody of Isabella to Ms.
Miller.
Two
potentially conflicting federal laws add to the
confusion. The Parental Kidnapping Prevention Act
largely tracks the state custody laws and requires other
states to defer to the first courts to hear such cases.
But the federal Defense of Marriage Act says states need
not give effect to same-sex unions.
Joan
Hollinger, who teaches adoption law at the University of
California, Berkeley, said the Vermont judge had the
better legal arguments. But, Ms. Hollinger added,
"Vermont courts are in practical terms powerless to
enforce their valid orders in Virginia if Virginia
courts simply say no."
If the
states' highest courts issue conflicting decisions, the
case could head for the United States Supreme Court,
said Mathew D. Staver, a lawyer for Ms. Miller. Mr.
Staver added that similar conflicts could arise from
decisions in California, where State Supreme Court ruled
last month that both people in a lesbian couple should
be considered a child's parents in many circumstances.
The Legislature in Sacramento passed a same-sex marriage
law on Tuesday.
Ms.
Levi disagreed, saying the case was an instance of the
ordinary heartbreak after a family breaks up.
"It's
an unfortunate reality that children get put in the
middle," she said. "Ultimately, what this case is going
to decide is whether children born to same-sex couples
should be treated the same or differently as other
children."
Andrew
Koppelman, a law professor at Northwestern, addressed
such case in a book on interstate recognition of gay
marriages that Yale University Press will publish next
year.
"If the
Virginia court is correct," Professor Koppelman wrote,
"then no parental right arising out of a same-sex
marriage is secure anywhere in the United States."
Ms.
Miller said Isabella neither knew about the case nor
cares about its consequences. "She doesn't even ask
about Janet," Ms. Miller said. "I am the only mother."
In
Vermont, Judge Cohen held Ms. Miller in contempt in
September for not allowing visits to Isabella. He has
not imposed sanctions.
"The
judicial system as a whole simply cannot allow parties
to try to take advantage of legal and cultural
differences," he wrote, "which may make one state favor
the position of a particular party over another."
Ms.
Miller said she found the idea that a court could force
her to allow Isabella to visit Ms. Miller-Jenkins
particularly hurtful. "It would be like somebody off the
streets coming and taking my daughter," she said. "They
have no ties to my daughter."
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