Virginia judge to rule on gay custody case

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RICHMOND -- A judge yesterday gave Virginia the jurisdiction to decide a child-custody case between two women who had entered into a civil union in Vermont, a move that could set a legal precedent for same-sex couples whose relationships are recognized in some states and not others.

Lisa Miller-Jenkins, 35, who dissolved her civil union with Janet Miller-Jenkins in Vermont last year, has sued in Frederick County Circuit Court to establish sole parental rights for the couple's 2-year-old daughter, Isabella.

Janet Miller-Jenkins, 39, contested the action, saying a judge in Vermont has given her temporary visitation rights with the child. Her attorney, Joseph Price, argued that because a custody proceeding is under way in another state, both state and federal law prohibit Frederick County Circuit Judge John R. Prosser from ruling on the case.

But Phil Griffin, Lisa Miller-Jenkins' attorney, said because Virginia doesn't recognize Vermont civil unions, Judge Prosser shouldn't be held to the rulings of judges under the civil-union law.

Judge Prosser set another hearing for Sept. 9 to make the order final. Mr. Price said he will appeal.

Judge Prosser's decision was hailed as a victory by pro-family groups supporting Lisa Miller-Jenkins, who gave birth to Isabella in Winchester in April 2002 and has lived in the state since last year.

"This is about Lisa's right to have her parental rights determined by a court of law," said Kevin Blier, director of the Center for American Cultural Renewal. "What about Lisa's rights? She gave birth to this girl."

The American Civil Liberties Union of Virginia and homosexual rights advocates, however, said the ruling could set a dangerous precedent.

"The reason child-jurisdiction statutes were enacted was to prevent exactly this scenario -- parents fleeing with children from one jurisdiction to another, because they don't like the custody rulings of a state," ACLU lawyer Rebecca Glenberg said.

Mr. Price said the decision could turn Virginia into "the Las Vegas of gay divorce."

"If you had a civil union in one jurisdiction and you wanted to be clear and free of the responsibilities under it ... you could just move to Virginia and none of those responsibilities would exist anymore," he said.

Virginia earlier this year passed one of the most restrictive anti-homosexual laws in the country, prohibiting civil unions, domestic partnerships and any other "arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage."

Gov. Mark Warner, a Democrat, called the law unconstitutional during the legislative session this past spring and unsuccessfully tried to amend it to make it less onerous.

Janet and Lisa Miller-Jenkins were joined in a civil union in 2000 and moved from Virginia to Vermont two years later.

Although Lisa Miller-Jenkins carried Isabella, Janet Miller-Jenkins said earlier this month that the women selected a sperm donor with her physical characteristics so the child would look like a mix of the two of them.

After Isabella was born in April 2002, both women took care of raising her. Janet Miller-Jenkins said she didn't adopt Isabella because she was assured that she had legal rights to the child under the couple's civil union.

Lisa Miller-Jenkins was given temporary custody during the dissolution of the civil union, but agreed to give her former partner certain visitation rights. Instead, she moved back to Virginia with Isabella in September 2003 and Janet Miller-Jenkins said she rarely saw the child, and never alone.

Janet Miller-Jenkins was not in court yesterday, but Mr. Price said she will press the Virginia courts for visitation with Isabella.