Court Rules That Non-Biological Mother is a Legal Parent of Child Born Out of Civil Union, Rejects Virginia’s Claim of Jurisdiction Over the Case.

The Supreme Court of Vermont has ruled that Vermont has jurisdiction over a child custody/visitation dispute stemming from the dissolution of a civil union entered into in Vermont, even though one of the parents moved to Virginia and asked the Virginia legal system to take jurisdiction. The Virginia Court of Appeals heard arguments in the Virginia case last fall, but deferred ruling on the matter until the Vermont Supreme Court issued its ruling.
“Ordinarily there would be no question that Vermont would retain jurisdiction in a case like this,” said ACLU of Virginia executive director Kent Willis. “There was no reason, other than bias against Vermont’s recognition of civil unions, for the Virginia courts to try to take over this case. This ruling, while simply a matter of following accepted law, is still an important step forward for gay and lesbian rights.”
A copy of the Vermont Supreme Court ruling is available at http://dol.state.vt.us/gopher_root3/supct/current/2004-443.op.

Case Background


Janet and Lisa Miller-Jenkins lived in Virginia when they traveled to Vermont to enter into a civil union in July 2000. After returning to Virginia, they decided to have a child through artificial insemination. Lisa conceived and carried the couple’s daughter. In April 2002, the couple’s daughter was born in Virginia.
Several months later, the family moved to Vermont. Lisa and Janet together raised their daughter as co-parents until they separated in the fall of 2003. Despite Janet’s objections, Lisa took the child and moved to Virginia. In November 2003, Lisa filed a petition for dissolution of the civil union in the Rutland Family Court in Vermont. In the petition, Lisa acknowledged that the child was born of the civil union, and asked the court to award custody to her and visitation for Janet. Lisa also asked the court to order Janet to pay child support.
In June 2004, the Vermont court issued a temporary custody order giving primary custody to Lisa and allowing visitation for Janet. Instead of following that order, Lisa filed a new action in Frederick County Circuit Court in Virginia. The Virginia court found that Lisa was the child’s sole parent and that Janet had no right to custody or visitation. The court cited Virginia’s “Marriage Affirmation Act,” which went into effect on July 1, 2004 and banned certain contracts between people of the same sex. In the meantime, the Vermont Court held Lisa in contempt for refusing to allow Janet visitation, and later held that Janet is a legal parent of the child. Lisa appealed that decision to the Vermont Supreme Court, which issued its ruling today.
The Vermont Supreme Court’s decision fully vindicates Vermont’s jurisdiction over the case and Janet’s parentage of the child. Specifically, the court held:
  • Vermont courts have jurisdiction under both state and federal law;
  • Janet is a legal parent of the child and is entitled to visitation;
  • The Vermont courts do not need to recognize the Virginia court’s order, because Virginia never had proper jurisdiction over the case;
  • The lower Vermont court properly held Lisa in contempt of court for refusing to allow Janet to visit or have telephone contact with the child.
“We hope that Lisa will now follow the Vermont court’s order and allow Janet to visit their child,” said Willis. “The real tragedy in all this is that this young child has not been allowed to be with one of her two parents.”
The Virginia Court of Appeals heard arguments in the Virginia case, Miller-Jenkins v. Miller-Jenkins, in September 2005. Lawyers with the ACLU of Virginia, Lambda Legal, and Equality Virginia represented Janet Miller-Jenkins. A decision from the Virginia Court of Appeals is expected soon.

Contacts: Kent Willis or Rebecca Glenberg, ACLU of Virginia (804) 644-8022

Stay informed

ACLU of Virginia is part of a network of affiliates

Learn more about ACLU National