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Lesbian’s custody rights are upheld

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Times Staff Writer

A Virginia appellate court ruled Tuesday in a closely watched lesbian custody dispute that the biological mother must answer to the laws of Vermont, where she and her former partner entered into a civil union and raised a child together.

The ruling skirted a broader question key to the national debate: whether Virginia can be forced to recognize such a union sanctioned in another state.

But it was celebrated by gay and lesbian organizations across the country for treating the parental relationship as it would any heterosexual one.

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Lisa Miller, who was ordered by the Vermont courts to grant her former partner visitation, is barred by the federal Parental Kidnapping Prevention Act from turning to a different state to seek a more favorable outcome, the Virginia court ruled.

“It is a big deal,” said Kate Kendell, executive director of the National Center for Lesbian Rights, which filed briefs in support of the non-biological parent, Janet Jenkins.

“The fact that the court would apply that rule of law objectively and fairly to a lesbian plaintiff is an enormously important victory for not only Janet Jenkins but for any lesbian or gay parent who may stand in her shoes,” Kendell said.

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Miller, who now lives in Virginia, was represented by faith-based Liberty Counsel, which opposes legal rights for same-sex unions and vowed to appeal.

The group’s president, Mathew Staver, called the case “the tip of the iceberg of what’s to come if one state cannot define its own marriage policy and must be subservient to the same-sex marriage policy of a sister state.” He noted that 27 states -- Virginia among them -- had passed constitutional amendments banning same-sex marriage and that many states had passed “defense of marriage” acts.

Jenkins and Miller traveled to Vermont from their home state of Virginia in 2000 to enter into a civil union. They took the name Miller-Jenkins and returned to Virginia, where Miller gave birth to Isabella. The couple then moved to Vermont.

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But in November 2003, Miller filed for dissolution of the union. She renounced her homosexuality and took Isabella, now 4, to Virginia, where a lower court ruled she was the sole parent.

The Vermont Supreme Court has upheld that state’s lower court ruling granting Jenkins visitation and determined that Vermont courts have sole jurisdiction.

The Court of Appeals of Virginia agreed, rejecting Liberty Counsel’s argument that the federal Defense of Marriage Act forbids Vermont to impose its laws on Virginia.

“This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont,” the justices wrote. “Rather, the only question before us is whether

Jenkins’ attorney, Greg Nevins of Lambda Legal, called those words “music to the ears.” Miller and Jenkins “purposely availed themselves of the protections of a Vermont civil union,” he said. “They raised a child as a family. That whole thing doesn’t go by the boards just because one of them decided to renege on that and forum-shop.”

Although Tuesday’s ruling is not binding on other states, University of Richmond School of Law professor Carl Tobias said it nevertheless had some reach. “The courts are obviously going to receive more of these custody disputes, and the question is going to be whose law applies,” he said.

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lee.romney@latimes.com

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