Thursday, November 11, 2010

Court Gives the Sad Saga of Miller-Jenkins a New Chapter

by Daniel Richardson

Miller-Jenkins v. Miller-Jenkins, 2010 VT 98 (mem.).

In yet another installment of what has to be the most public custody proceeding in Vermont, the SCOV rejected arguments made on behalf of a mother fighting a trial court order transferring custody of the child to her former spouse. 

The facts of this case are well known, but are worth a brief review, if only because the emotional intensity of this case can sometimes obscure the more bread-and-butter legal issues driving things.  In 2000, Lisa and Janet Miller-Jenkins came to Vermont and obtained a civil union, which gave legal status to their same-sex union.  They then returned to Virginia where they decided to have a child.  They selected a sperm donor, and decided Lisa was to carry the baby.  Nine months later, Lisa gave birth to a happy, healthy baby, known to the public as IMJ.  The new family moved in 2002 to Vermont where they lived for 17 months before the couple split.  Janet helped Lisa and IMJ move back to Virginia and maintained contact.  In November 2003, Lisa filed a pro se divorce complaint in a Vermont state court to dissolve her civil union.  Although not stated in the opinion, this action was driven in part by Lisa’s newly resurgent Christian faith and decision that she was no longer a lesbian. 


Within six months, the trial court issued a temporary order giving Lisa legal and physical custody of IMJ with regular visitation and telephone communication to occur with Janet.  This order did not appear to have been followed as Janet was denied contact with IMJ on several occasions and on several scheduled visits.  Needless to say, this did not sit well with the trial court, who found Lisa in contempt on several occasions.  Lisa appealed these contempt orders, the granting of visitation rights, and the conclusion that Janet had parental rights to the SCOV, which affirmed the trial court in all respects.  Miller-Jenkins v. Miller-Jenkins, 2006 VT 78

Following these initial legal challenges, the case went back to the trial court where a divorce hearing was held and custody considered under the nine statutory criteria for the best interests of the child.  In 2007, the trial court issued an final order that concluded it was in IMJ’s best interests to remain in Lisa’s custody subject to Janet’s permanent visitation rights.  Specifically, the trial court found that the disruption of changing IMJ’s home outweighed Lisa’s refusal and inability to allow Janet to have visitation.  The trial court ordered the civil union dissolved and ordered the couple’s assets divided and distributed.  Not good enough for Lisa who appealed again.  Miller-Jenkins v. Miller-Jenkins, No. 2007-271, 2008 WL 2811218.  And lost, again. 

The present appeal lies from a post-trial custody modification order.  Since 2007, Janet’s contact with IMJ has become increasingly sporadic as Lisa has taken unilateral actions to isolated Janet and Janet’s parents from IMJ.  This has come to an awkward point where Lisa and IMJ have essentially disappeared, and Lisa is no longer attending hearings or communicating with her attorneys.  Because Lisa appears to have completely abandoned the legal process while cutting off all communication between Janet and IMJ and Janet’s family and IMJ, the trial court found that continued custody with Lisa was no longer appropriate and awarded legal and physical custody to Janet—a hollow victory given the circumstances.

On appeal, Lisa’s attorneys challenge the factual basis of the trial court’s order and raise two constitutional questions: that transfer of custody violates Lisa’s fundamental parental rights as IMJ’s sole biological parent; and that the trial court denied Lisa her due process rights in the custody transfer.

The SCOV quickly rejects Lisa’s attorneys’ first argument.  Family Court findings are reviewed on a deferential basis, in a light most favorable to the appellee, whether the trial court correctly determined that there was a real, substantial, and unanticipated change in circumstances and that a change in custody was in the best interests of the child in light of the change.  The trial court found and the SCOV affirmed that Lisa’s continued and toxic refusal to grant Janet even a small place in IMJ’s life, coupled with Janet’s willingness to share IMJ with Lisa, Lisa’s family, and Lisa’s faith, rendered a change in custody appropriate.  The SCOV goes on to address the various allegations that Lisa or Lisa’s attorneys have made, namely that Janet abused IMJ and/or that Janet’s sexuality (and by extension, Lisa’s former) is detrimental to IMJ.  The SCOV finds the latter to be baseless and the former to lack any credible support. 

In the end, the SCOV notes that whatever personal justification Lisa may feel in defying the Court and the State of Vermont, this behavior was destructive of the best interests of the child.  By playing fair and following the rules, Janet demonstrated a greater interest in IMJ’s best interests and showed that any short term disruption in IMJ’s life would be overcome in the long-run by Janet’s stability.

As to the constitutional claims, the SCOV finds that Lisa failed to preserve the claims, and to the extent that she did, the law does not recognize a distinction between co-equal legal parents simply because one had a greater biological connection.  No miscarriage of justice occurred. 

At the end, the SCOV and Justice Skoglund in a concurrence, emphasize that the length of time Lisa has kept IMJ away from Janet has further complicated the situation necessitating some kind of plan to ease IMJ into Janet’s custody and to reassess IMJ’s relationship with Janet once they are able to have one again.

Let this author conclude this summary with a small editorial summarizing some of the legal community’s views on this case.  Despite the publicity and arguments made, this case is a fairly straightforward divorce and custody case.  Lisa Miller obtained a civil union in Vermont, and she sought to dissolve it in Vermont.  In between, she and Janet chose to bring a life into the world.  These actions have consequences.  These actions have legal repercussions.  Not so long ago, we as a society created a process for dissolving social unions and for assigning custody of the children from these couplings.  This system for all its intentions has its flaws and shortcomings, but it remains the best system that we have been able to construct to deal fairly and civilly with issues that are by their inherent nature are personal and emotional.  The system focuses on the best interests of the child, the truly innocent party, but it does so in a manner that is respectful of everyone’s interests.  It is fair and impartial in the best and most human sense of that word.  It recognizes its flaws and its limits, and it gives the parties the chance to revisit and re-argue for change where circumstances require.  By flouting the Court and the legal process that she started, Lisa Miller is setting herself before the law.  Lisa Miller is no different than hundreds of parents who, no longer in love with their former spouse, believe the worst and wish to remove him or her from their lives.  These parents fight hard and argue for their children, but they play by the rules.  At the end of the day, they accept the judgment of the courts.  In doing so, they prove their love for their children by acknowledging, albeit begrudgingly, the other parent’s right and interest in caring for and loving their children.  Whether she is or is not the best parent for IMJ, Lisa has shown herself to be the worst-type of American.  Faced with difficulty, she has been running away rather than standing behind her arguments and taking the consequences of her beliefs.  She has put herself above the law and that is a spot only for rogues and tyrants.  I hope that Lisa takes the words of the SCOV to heart and recognizes the fair and equitable offer it represents.  

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