Virginia’s gay ruling possibly sets bar

Family law seen evolving

By Benjamin Newell and Tom LoBianco, The Washington Times – June 7, 2008

A Virginia Supreme Court ruling released Friday may guide other states as they wade into the evolving area of family law for gay couples, legal analysts said.

The decision upholds a lower court ruling granting Janet Jenkins visitation rights with a daughter she raised with her former partner, Lisa Miller. Miss Miller, who now lives in Winchester, Va., sought sole custody of the child, arguing the state’s Defense of Marriage Act trumped a Vermont child custody order that gave Miss Jenkins visitation rights.

The two women formed a civil union in 2000 in Vermont, but have since dissolved it. Miss Miller renounced homosexuality and moved back to Virginia after the split.

The Virginia Supreme Court decision, which gave the state of Vermont jurisdiction in 6-year-old Isabella Miller-Jenkins’ fate, is not binding on other states “but it could be a persuasive authority,” said Allen M. Bailey, vice chairman of a committee on child custody at the American Bar Association.

States set their own laws and policies on child custody, he said, but as gay relationships become more acceptable and more couples adopt or have children, there will be more cases that come into the family courts.

Lynn D. Wardle, who teaches law at Brigham Young University, said the Miller-Jenkins case turned on the question of whether Vermont or Virginia had the right to decide the custody case.

In this case, the 28-year-old federal Parental Kidnapping Prevention Act, which says the home state has jurisdiction, came into play, he said. So, it’s “not surprising” that the Virginia court would recognize Vermont’s jurisdiction.

But opponents of the decision see it as part of a global trend to elevate parental “feelings” toward a child over the needs of the child.

“We are concerned that the court failed to put the needs of the child over the warm feelings of Janet Jenkins,” said Glenn Stanton, director of family information studies for Focus on the Family.

After their civil union, Miss Miller conceived a child through in-vitro fertilization. Two years later, Miss Miller converted to Christianity and declared herselfheterosexual. When Miss Miller moved to Virginia, she sought sole custody in Virginia appellate courts.

“I’m relieved that this tug-of-war with my daughter is over,” Miss Jenkins said in a statement released by the gay rights group Lambda Legal. “This has been a very long four years. My daughter and I need some time to be together. She needs her other mom.”

Mathew Staver, attorney for Miss Miller, said his client “has not lost her courage or her resolve” and will pursue other legal options.

In another decision, the court handed two victories to Randolph College in separate suits that had sought to force the school to remain for women only.

The private college just north of Richmond began admitting male students in the fall of last year amid growing concerns over its survival as a single-sex campus.

Some students sued on the grounds that they had enrolled expressly for the purpose of attending an all-female campus. Some donors balked at the change and filed a separate lawsuit to block the admission of men.

But the Supreme Court ruled yesterday that their respective arguments fell flat – that they were misled by college promotional material printed before the change, and that their donations constituted a public trust that could not be used by the college however it liked.

“Once you’ve given money to somebody you can’t say ‘Well I gave this money to you because I thought you were a nice university but I didn’t know you were mean and now I want it back,’ ” said L. Steven Emmert, a specialist in Virginia appeals law who covers state Supreme Court rulings on his blog.

*Cheryl Wetzstein contributed to this report.