The lesbian custody battle I mentioned earlier and blogged about back in in August is back in the news again. And it underscores just one more way in which our families, and as a result our children, are vulnerable due to a lack of legal recognition and the protections that go with it.
A Rutland Family Court judge will decide whether to penalize a Virginia woman who failed to comply with a child-custody ruling that grew out of the breakup of her civil union.
In August the Vermont Supreme Court rejected her argument and sent the case back to Family Court.
Last week, Vermont’s highest court turned down a request for a new hearing.
“(Lisa Miller-Jenkins’) motion for re-argument fails to identify points of law or fact overlooked or misapprehended by the court that would probably affect the result of the appeal,” the Supreme Court said.
Theodore Parisi, Janet Miller-Jenkins’ lawyer, has asked the court to consider penalizing Lisa Miller-Jenkins, by transferring “temporary parental rights and responsibilities to (Janet Miller-Jenkins) or hold a hearing as suggested in this court’s order dated July 19, 2004.”
The order said “failure of the custodial parent to allow contact will result in an immediate hearing on the need to change custody.”
The case was also featured recently on In the Life (see the “Family Ties” episode, and the “Family Ties” segment). In particular, watch the part that discusses the non-biological mom’s legal rights, and the grandmother spelling out that “Janet didn’t have any legal rights in Virginia.”
That’s before the ant-gay marriage amendment passed, mind you. Because even then, Virginia did not allow joint or second-parent adoption for same-sex couples, and would not issue new birth certificates for children born in Virginia who were adopted by same-sex couples. The Family Resources page at the Equality Virginia website, doesn’t appear to have been updated, but last year the Virginia Supreme Court ruled that the state had to issue new birth certificates.
By a 5-2 vote last week, the Virginia Supreme Court said that a circuit court in Richmond had erred in preventing new birth certificates listing both adoptive parents from being issued for children born in the Commonwealth who have been otherwise validly adopted by same-sex couples outside of the Commonwealth.
“Nothing in the statute precludes recognition of same-sex couples as adoptive parents or requires that forms listing only one mother and one father be used, and the regulation’s requirement as to form use, as interpreted by the responsible agency, is contrary to the ordinary and plain language of the statute,” read the majority opinion, which was handed down on Friday.
“This is typical of the types of roadblocks that are put up in front of gays and lesbians. The law is clear on this subject, and yet the plaintiffs in this case had to go to court and take their case all the way to the state supreme court to have access to the same rights that are granted to heterosexual couples without question,” said Joe Price, the chair of the Richmond-based Equality Virginia gay and lesbian rights advocacy group.
“This is a classic case of what gays and lesbians talk about as far as wanting the same rights as everybody else. In this case, they simply wanted birth certificates with both the parents’ names on them so that if there was ever a question about familial ties, for school purposes for medical purposes, whatever, they would have that in writing, just like every other set of parents does. I’m happy that the Virginia Supreme Court has recognized this, and I hope that this is a small step in the right direction as far as these kinds of decisions goes,” Price told The Augusta Free Press.
The courts threw the matter back to the legislature, which spawned an anti-gay adoption bill that overwhelmingly passed the House of Delegate, but (fortunately) died in the state Senate. With the passage of the anti-gay marriage amendment in Virginia, however, I’d say that the rights and protections of same-sex couples and their children are at the very least called into question. And the decision of the Virginia court in this case suggests that at least some judges are willing to toss aside legal arrangements like civil unions that were enacted in other states.
So, it’s like I said earlier, gays & lesbians in states that pass amendments containing language that can be read as nullifying their legal arrangements, are at risk, and so are their kids.
It seems that when it comes to what effect the current law and proposed amendment will have on legal arrangements between same-sex partners, the choices are that you believe the arguments presented by one side or the other that it will have no effect or that it will have a negative effect, or you figure there’s no way to know until either or both are tested; as Anderson put it, “actual cases will determine its ultimate impact.”
The problem is that being gay in Virginia means taking the risk of being one of those test cases, and dealing with the consequences of your relationship and legal documents not being recognized in situations like the illness or death of a partner. And given Virginia’s conservatism and the likelihood of ending up before a conservative judge, those “actual cases” might not fare so well in the state.
Again, why take the risk?
That’s what the lesbian couple thought in this case. Why take the risk? Leave the state. Unfortunately, it didn’t work.
Unfortunately, their case points out a vulnerability that our families face even when we have entered into civil unions recognized in other states. Our rights are not portable. We may be married in Massachusetts and “civil-unionized” in Vermont, but in Virginia we’re virtual strangers to one another. Our right change, and even move in and out of existence, when we cross state lines. Even our legal documents may not be recognized in some states, or at least not until after a lengthy and expensive court battle. The problem is that the first person whose going to have to determine their validity, interpret the law, and decide whether to recognize them or not most likely won’t be a lawyer, but a hospital employee or funeral home director instead.
But for heterosexuals, if you’re married in Alabama then you’re married in Alaska, and if you’re married in West Virginia then you’re married in Wyoming, and all the rights and protections of marriage travel with you. And that includes custody rights, because divorce law is related to marriage law, and is designed to protect parents and children in the even that a marriage falls apart. (It happens to us, just like it happens to other families.) It ensures that there will be some degree of fairness in the dissolution of the marriage, including protecting one parent against the other severing their relationship with their children. I guess you could even say it protects children by ensuring that they still have two parents even if those parents don’t have one another as spouses anymore.
But not for us.
If Janet Miller-Jenkins had been, say, an infertile man who’s wife conceived via IVF, she either could have adopted the child or would have been considered the de-facto second-parent in light being married to the mother. (And no one would have argued that she was any less of a parent for not having any biological ties to the child, or for not being able to reproduce with her spouse), especially since she’s been the only other parent sice birth, contributing to the child’s welfare and well-being as any good parent does.) If the couple moved to Vermont, divorced, and the mother high-tailed it back to Virginia, she would have been protected against the possibility of her ex-wife “forum shopping” until she found a court that would give her the custody ruling she wanted.
For that matter, so would their child have been protected from what’s probably going to be an ongoing, bitter custody battle. A kid whose parents were married — whose parents could legally marry one another —would have a fighting chance against that.
But not us. Not our kids.
So, this stuff happens and will continue to happen while we wait for the law, the legislature, and the apparently sacred “will of the majority” (which can never, ever be wrong, by virtue of being the majority) to catch up to a few simple realities:
Our families exist.
Our families will continue to exist.
Our families have the same needs as theirs.
Our families suffer much as the would without the benefits and protections intended to safeguard families and the individuals who come together to create them; the stuff they take for granted, the stuff we do without and literally pay the price for not having.