Same-Sex Custody Battle Goes To State Supreme Court

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(Host) Members of the state Supreme Court had tough questions on Wednesday for the lawyer of a Virginia woman who disappeared in the middle of a long-running child custody dispute.

The case has raised questions about whether same-sex partners have the same custody and visitation rights as heterosexual couples.

VPR’s John Dillon reports.

(Gavel… The honorable, the Supreme Court!)

(Dillon) This is the second time that the Supreme Court has heard arguments in a bitter child custody battle between two women who were former partners.

But the case took a new turn in January, when Lisa Miller – who now lives in Virginia – failed to appear to hand over the child in a court-ordered custody swap.

Miller’s lawyer is Rena Lindevaldsen. She says she hasn’t heard from her client in months and doesn’t know where she is. And she told the state Supreme Court that a Vermont trial judge was wrong to award custody to Miller’s former partner.

(Lindevaldsen) You’re switching from the first time anywhere in this nation from a fit biological parent that individual’s child and switching to somebody who has been declared to be a parent who is not that child’s biological or adoptive parent.

(Dillon) But associate Justice John Dooley challenged the lawyer on a number of points. First, Dooley asked: what about men whose children were conceived through reproductive technologies."

(Dooley)  "So I take it your position would be the same to a father, to a husband, for whose spouse was impregnated by artificial insemination – he could not ask for custody in a proceeding if they went through a divorce? Is that right?"

(Lindevaldsen) "Unless of course he adopted the child in the meantime."

(Dillon) But Dooley said because the couple had been joined in a Vermont civil union the child did not have to be adopted in order for Jenkins to be considered a legal parent.

Then Chief Justice Paul Reiber weighed in. Reiber brought up the issue of Lisa Miller’s contempt of court citations. The Virginia woman faces arrest because she defied a court order and disappeared with the child.

(Reiber) "You said a few moments ago that your client, your referred to her as a ‘fit parent." Hasn’t she had seven or eight contempt orders issued against her?"

(Dillon) The justices asked fewer questions of Jennifer Levi, the lawyer representing Janet Jenkins, who lives in Fair Haven. Levi said that the Liberty Counsel essentially wants the Vermont court to reverse its 2006 order that gave equal visitation rights to her client. The counsel is a Virginia based conservative legal advocacy group.

(Levi) "By its appeal today, Liberty Counsel asks this court to create two classes of legal parents, something which this court has never done and which there is no support in Vermont law or any law."

(Dillon) The girl at the center of the dispute is now eight years old. After the hearing, Levi said that Miller’s disappearance with the child is distressing for her client.

(Levi) "It’s devastating. I’ll just speak to it as a practical matter, not as an extra legal matter, which is that there is a child at issue in this case who has literally been placed in hiding. And I think that is just tragic."

(Dillon) The court gave no indication when it would rule on whether the trial was correct in awarding custody to Janet Jenkins.

For VPR News, I’m John Dillon in Montpelier.

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