• Landmark ruling made in civil union custody battle
     | November 21,2004

    A Vermont judge has ruled for the first time that both members of a same-sex civil union are the legal parents of a child born to one of them.

    The decision, handed down last week by Judge William Cohen, is the latest twist in a nationally watched custody dispute that has resulted in conflicting rulings in two states.

    Cohen ruled that Janet Miller-Jenkins of Fair Haven is a parent to 2-year-old Isabella, a child born by artificial insemination to Lisa Miller-Jenkins. At the time, the two women were joined in a civil union.

    Attorneys for Lisa Miller-Jenkins, who now lives in Virginia, had contested whether Janet Miller-Jenkins was the child's parent. A Virginia judge had granted Lisa Miller-Jenkins full custody of the child, ruling that Janet Miller-Jenkins was no more than a friend to the child.

    Cohen reached a different conclusion under Vermont law.

    "Parties to a civil union who use artificial insemination to conceive a child can be treated no differently than a husband and wife, who, unable to conceive a child biologically, choose to conceive a child by inseminating the wife with the sperm of an anonymous donor," Cohen wrote.

    "Under Lisa's interpretation of the law, because there is no established precedent in Vermont, the husband would be no more than a mere stepparent and would be required to adopt the child in order to be considered a parent in the eyes of the law. This argument is without merit."

    The judge ruled the case can now be set for a final hearing in Rutland Family Court to determine issues such as custody and child support.

    The case has attracted national media attention, highlighting the fate of children in relationships sanctioned in one state but not in others.

    Michael Mello, a professor at Vermont Law School, said Friday the ruling is believed to be the first time in a civil union custody dispute that a Vermont judge has granted a person rights as a parent even though she is not the biological parent.

    "It's a landmark decision, and it's a no-brainer under Vermont law," said Michael Mello, a professor at Vermont Law School. "It shouldn't be controversial and the only reason it is, is because it involves a civil union."

    Cohen wrote in his decision that under Vermont law, "parties to a civil union have all the same benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, as are granted to spouses in a marriage."

    However, Mello said, the decision reached by the Virginia judge was also a "no-brainer" under that state's laws.

    "It's this kind of jurisdictional collision that's going to get this issue before the U.S. Supreme Court," Mello said.

    The women were living in Virginia when they agreed four years ago to enter into a civil in Vermont. The pair then returned to Virginia and decided Lisa Miller-Jenkins would conceive a child through artificial insemination.

    Isabella was born in Virginia in April 2002 and the two women returned to Vermont. The women then later broke up, filing to dissolving their civil union in Rutland Family Court.

    Lisa Miller-Jenkins, 35, moved with the child back to Virginia, a state where civil unions are not recognized. She sued in Virginia for full custody and a judge later granted her request.

    Janet Miller-Jenkins, 39, had opposed the Virginia action, arguing that a judge in Vermont already had given her temporary visitation rights.

    Cohen had awarded Janet Miller-Jenkins visitation rights as a noncustodial parent to Isabella. In his order released last week, Cohen ruled that the temporary order remains in effect pending a hearing.

    Contact Alan J. Keays at alan.keays@rutlandherald.com.

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