Same-sex couples especially those with children face all kinds of problems within the social and legal spheres of life. Same-sex couples are denied access to their partners while their ill in hospitals. Same-sex parents must deal with hostile and bigoted school systems. Same-sex couples who dare display affection and their love towards one another in public may face venomous slander and violence (though never mind it’s okay for hetero folks to swap-spit and practically dry-hump each other in public). Then there’s our oh so pro-civil-rights and “justice for all” legal system which goes out of its way, certainly in specific parts of the country, to routinely restrict and deny the civil rights and liberties of same-sex couples and the Queer Community in general. All to the appeasement of the Radical Right and their fundamentalist dogma. Families headed by same-sex parents are especially endanger of having their rights trampled by the courts and those *gasp* activist judges. Here’s an article from Planned Parenthood illustrating the legal hardships faced by same-sex parents and families should they split up much like hetero-parents and their families. But minus the denial of civil rights, based solely on the bigotry toward same-sex relationships.
Five years ago, Janet Miller-Jenkins and her partner, Lisa, traveled from their home state of Virginia to Vermont, where they could legally secure their relationship via civil union, and, where, later, they would move to raise their child.
But the legal stability they sought in Vermont was shattered when, in the wake of their separation, Lisa Miller-Jenkins returned to Virginia and used that state’s Affirmation of Marriage Act … one of the country’s most extreme state laws against the rights of same-sex couples … to rob Janet of the right to see their only child.
The resulting court case … Miller-Jenkins v. Miller-Jenkins … pits Vermont law against Virginia law and illustrates the human cost when same-sex couples and their families are not given the same legal protections afforded their heterosexual peers.
In 2001, a year after Lisa and Janet Miller-Jenkins were joined via civil union, Lisa was artificially inseminated with sperm from a donor whose physical characteristics matched Janet’s. Isabella Miller-Jenkins was born in Virginia on April 16, 2002.
That July, Janet, Lisa, and Isabella relocated to Vermont, where the laws were more amenable to same-sex couples and their families. In 2003, however, the couple split up and Lisa filed for dissolution of the union in Vermont. The court, recognizing both women as Isabella’s parents, granted Lisa custody and Janet visitation rights.
“The fight among the states is not merely about jurisdiction but about drastically differing versions of family, marriage, and good citizenship.”
Far from ending the custody case, the Vermont court decision proved to be just the beginning. Lisa returned to Virginia, claiming she was no longer a lesbian, and filed a claim for sole custody of Isabella, who was then two years old.
Quick comment; I’m pretty sure that I can “stop” being heterosexual, especially if I wanted to hurt my ex-partner in the most malicious way just to deny them visitation rights. But anyway…
Virginia has some of the strictest laws against same-sex unions in the country: in addition to a 1997 law that bans gay marriage, the 2004 Affirmation of Marriage Act bans same-sex civil unions and any other legal contracts or partnerships that might bestow marriage-like rights on same-sex couples. In August 2004, the state court, relying on those laws, declared Lisa to be the sole legal parent of Isabella and denied Janet all visitation rights.
Outraged, Janet decided to fight back. She appealed the Virginia court’s ruling, with support from legal advocacy organizations, including Equality Virginia, Lambda Legal, and the Virginia American Civil Liberties Union. Now, she is in the midst of a complicated legal battle … one that will not have a quick resolution.
Who Is a “Parent”?
Vermont recognizes Janet as Isabella’s parent; Virginia does not. Traditionally, courts have defined “parent” biologically.
Oh well then, if my parents and I lived in Virginia (or a state with a like-minded family court system) then both of them would be screwed because they adopted me. None of them would be my parents by Virginia’s narrow definition of what makes you a parent.
But as non-traditional families have become more common, advocates have pushed for a definition of a parent based on nurture, not on nature. Such a definition would recognize parental rights for women like Janet who, although not biologically related, is considered, in the eyes of many, Isabella’s other parent.
In the Miller-Jenkins custody battle, Virginia follows the purely biological definition of a parent. Vermont, following Judge William D. Cohen’s decision to award Janet visitation rights in the initial custody case, recognizes parental rights as stemming from the civil union and the couple’s intent to have and raise the child together. Vermont’s decision can be seen as a victory for same-sex couples, since it adds parenthood to the rights that same-sex couples gain through a formal union.
Although the legal conflict lies between the states of Vermont and Virginia, the Miller-Jenkins custody fight also invoked two potentially conflicting federal laws … the Defense of Marriage Act (DOMA) and the Parental Kidnapping Protection Act (PKPA).
DOMA allows one state to reject a same-sex marriage or civil union formed in another state. PKPA, designed to protect children at the center of what are often vicious custody battles, requires a state court to refuse to grant a new custody order when one has already been issued by another state.
The Virginia state court invoked DOMA as a basis for ignoring PKPA in the Miller-Jenkins custody case. It held that, because Virginia law did not recognize the couple’s civil union, it would not recognize the parental rights granted to Janet from the union.
The Virginia decision, if upheld, would prevent PKPA from protecting children born to same-sex couples from being kidnapped by one parent.
All to prove how much they (Virginia) despise same-sex relationships and will do everything in its power to destroy same-sex headed families. To you know, just prove a point. So ‘family-oriented’ aren’t they?
Whose Best Interests?
Greg Nevins, Janet Miller-Jenkins’ lawyer at Lambda Legal, says that the true purpose of PKPA, to protect the best interests of all children in custody disputes, is at the heart of the case. “There is no gay exception to this rule,” he says. “It applies to everyone.”
The outcome of Miller-Jenkins will be a powerful indicator of where this country stands on the treatment of lesbian and gay parents and their children. Ruthann Robson, professor of law at City University of New York Law School in Queens and an expert in lesbian and gay legal theory, says, “The fight among the states is not merely about jurisdiction but about drastically differing versions of family, marriage, and good citizenship.”
In a society in which more than 1,100 federal benefits and legal protections are reserved for couples who are legally married, bans against gay marriage and same-sex civil unions leave thousands of lesbians, gay men, and their families defenseless. And as more and more states seek to ban gay marriage and same-sex civil unions outright, it is becoming increasingly difficult to predict how the rights of same-sex couples and their families will be protected.
Unless those with a particular agenda out to destroy and even prevent same-sex families from becoming have anything to say about it. And they do and they’re working ever closer to return us to the times when ‘family’ and ‘parenthood’ were defined by the narrow views of certain individuals in power, prejudiced against “non-traditional” families and people.
- The Republican Platform: Anti-Same-Sex Marriage and Anti-Civil-Union
- New York Mayor to stop same-sex marriage ceremonies and other states of unions in States of the Union
- Some Same-Sex Marriage related links
- New M. V. Lee Badgett paper: Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage?
- Oregon Judge Orders Stop to Gay Marriage Licenses