It's not that the Jenkins-Miller case is that unusual: Parents split, one leaves the state with the child, things escalate and the left-behind parent sues for custody. Variations on the theme play out daily across the country, leaving family courts and judges to sort out "he-said, she-said" conflicts beneath which the future of innocent children is buried.
But what happens when the conflict takes a new twist? As in "she-said, she-said"? Or "Vermont says, Virginia says"? Can parentage be drawn at the state line? That's one question driving the litigation between Lisa Miller and Janet Jenkins.
At the center of the storm is Isabella, a bright-eyed, enthusiastic 5-year-old who loves birthday parties and play dates and is given to warbling "Trust and Obey" as she manages a pastel abundance of toys. Unaware of the adult controversy swirling around her, she lives with her biological mother Miller in a modest bungalow at the end of a cul-de-sac in Winchester, Va. While Miller's single-mom status might be deduced from the overgrown yard, inside the front door there is no doubt as to her devotion. Scores of photos of Isabella clutter every horizontal and vertical surface.
This wasn't the way it was supposed to be. In August 2001, when Miller underwent artificial insemination, she and Jenkins planned to raise a baby together. Since 1999 the two Virginia natives had lived together as lesbians in Hamilton, 30 miles from Winchester, running a daycare center from their home.
Shortly after Vermont passed its civil-union law in 2000, Miller and Jenkins made the pilgrimage-taken in the last seven years by over 8,000 couples from all over the country-to gain official recognition of their relationship. They returned home to Virginia, where Miller would eventually conceive and give birth to Isabella.
For Miller, this would be a second "marriage." But while her previous union, a Virginia marriage that ended in divorce, would be recognized in all 50 states, the Vermont union would not-a legal quandary that can only be remedied by legalizing homosexual unions in all 50 states or outlawing them under a federal marriage amendment.
While social engineers were hatching their larger plans one state at a time, people like Miller and Jenkins hopped on the civil-union bandwagon for their own individual reasons. Like many heterosexual couples, Miller and Jenkins may have thought "tying the knot" would fix things.
"It was a troubled relationship from the beginning," says Miller, who spent most of the '90s trying to deal with monumental family issues-including abandonment by her father and childhood abuse by a mentally ill mother. Even as Miller worked serving the mental health community, she was working through her own wounds from the past with Alcoholics Anonymous and therapy.
It was in all three contexts that Miller began to identify herself as a lesbian, meeting numerous others on the job and at meetings, while being urged in therapy to accept her lesbianism.
"I never had a stable relationship. I never dated until I married my husband," recalls Miller, whose second relationship was a brief and volatile one with a woman from AA who had serial relapses in her battle with the bottle.
Miller's sobriety stuck, though, and when times were tough, she relied on AA, where she met Jenkins.
"By this time, I was trying to leave lesbianism," Miller says. But when Jenkins asked her out, she agreed. Their relationship progressed quickly, then settled into a "normal" life: buying a house in a small town, doing daycare, even becoming foster parents.
Like all couples, Jenkins and Miller had their share of disagreements, and Miller now claims Jenkins was often violent. The baby caused additional stress in their relationship, as Miller wanted to quit caring for other kids and be a traditional stay-at-home mom.
In August 2002, Jenkins and Miller sold their house in Virginia and moved to Vermont, where Miller says Jenkins promised she could stay home with Isabella. According to Miller, the relationship did not improve, as Jenkins-working as a nightshift security guard-grew increasingly bitter and controlling, demanding that Miller return to daycare.
A year after moving to Vermont, Miller brought Isabella back to Virginia to visit Miller's brother, a Christian who'd wanted little to do with her until then. While visiting, she attended a church service with him and made a commitment to Christ.
Upon her return to Vermont, Miller says, "We sat down to ask where our relationship was going. Nowhere." According to Miller, all was amicable as she signed a quit claim to the house and Jenkins agreed that Miller would have custody of Isabella, with visitation rights for Jenkins.
And so, after 13 months in Vermont, in September 2003 Miller and Isabella returned to Virginia: "I had no money, no job, no identity-everything had been in Janet's name." Her brother offered to be guarantor for the lease on her house-and as a single mom beating out nearly 100 other applicants for a house rental, Miller began to see miracles stacking up, including a job, a church home, and the peace that passed understanding.
Then the legal fallout began, which continues to this day on three fronts:
Vermont: When Miller filed in November 2003 for dissolution of her civil union, Jenkins counter-sued for custody of Isabella. Jenkins was granted 10 days every third week pending the court's final order. When Miller filed a petition refusing the Vermont court's jurisdiction in the case, the court affirmed Jenkins' status as parent by virtue of the civil union. In 2006 the Vermont Supreme Court upheld this decision and found Miller in contempt and levied sanctions of $10,000 to be paid to Jenkins.
Virginia: In October 2004, a Virginia court awarded Miller sole custody of Isabella, a decision overturned in 2006 by the Virginia Court of Appeals. In March 2007, Liberty Counsel, now representing Miller, asked the Virginia Supreme Court to take the case, with no response to date.
U.S. Supreme Court: The U.S. Supreme Court on April 30 denied review of the Vermont decision affirming Jenkins as legal parent of Isabella.
But, according to Liberty Counsel, this is not the end of the road. Ongoing litigation will eventually be cause for further review.
Contacted by WORLD, Jenkins referred questions to nationwide law firm Arent Fox, which represents her. Arent Fox attorney Joseph Price told WORLD the latest appeal is actually being handled on Jenkins' behalf by Gay and Lesbian Advocates and Defenders (GLAD). Price said he believes the case will be resolved in Jenkins' favor because it appears Miller has been "jurisdiction shopping." (She has been forced to file in both Vermont and Virginia courts.)
And the litigation continues, as both sides were recently required to submit briefs to determine Isabella's final custody-at least in the eyes of Vermont.
The 22-page brief filed on behalf of Jenkins by attorney Lisa Chalidze on April 20 notes: "Ms. Miller's belief that homosexuality is sinful-one of her preferred justifications for estranging Isabella and Janet-can be traced back to the middle ages. Medieval canonical law viewed homosexuality as a sin."
Chalidze contends that Miller's faith places Isabella at risk since it will negatively impact her relationship with Jenkins. Jenkins claims she can provide a healthier, less prejudicial home with liberal visitation rights for Miller.
The Jenkins brief concludes:
"Vermont's pioneering stance on civil unions in 2001 spawned a national debate that continues to the present, in which more than half the states in this country have modified their laws to defy the legal protections afforded by Vermont. In fact, within the last two years 27 states have voted to modify their constitutions to define marriage as a union of one man and one woman."
On April 27, New Hampshire became the third state to join Vermont in granting civil unions. The Jenkins filing's characterization of 27 marriage-affirming states as being in defiance of Vermont's "pioneering stance" begs the question: Who's defying whom?
In the meantime, the question of Isabella's custody-with the lengthy appeal process and long-distance visitation-will not be answered soon. And just as certain: The Vermont/Virginia state clash is only the beginning.
According to Mathew Staver, founder of Liberty Counsel and Liberty University Dean of Law, the conflicts will continue to escalate until a constitutional amendment defines marriage or until the Supreme Court intervenes. In the meantime, said Staver, "the tragedy is that innocent children are being used as political tools by groups that have an interest in fostering same-sex marriage."
-Barbara Curtis is a writer living in Waterford, Va., and a mother of 12