Ex-Lesbian Mother Loses Appeal to Keep Former Civil Union Partner Away from Daughter

Wed Jun 11, 2008 - 12:15 pm EST

By Peter J. Smith

RICHMOND, Virginia, June 11, 2008 ( - A mother trying to retain sole parental rights over her biological child from her former lesbian lover has lost her appeal in the Virginia Supreme Court, even though the state has a constitutional amendment banning same-sex civil unions.

The Virginia high court agreed last Friday with the state appeals court ruling, which stated a Virginia trial court had overstepped its bounds by invalidating a Vermont trial court’s orders that mandated Lisa Miller allow her former lesbian partner, Janet Jenkins, visitation rights to Miller’s biological child Isabella.

Lisa Miller has been fighting to deny visitation rights to her six year-old daughter Isabella from her former partner Janet Jenkins since 2004 after Lisa dissolved their Vermont civil union in 2003 and converted to Christianity. Thereafter the battle over visitation rights ensued between Miller and Jenkins, because Miller wanted to protect her daughter from Jenkin’s homosexual proclivities.

However, the Vermont courts have recognized Jenkins as a de facto parent, because the child was born during their civil union, even though Jenkins has no biological or legal adoptive relationship with Isabella, and the child was born in Virginia, the couple’s native residence. (

In November 2006, the Court of Appeals vacated the orders of Frederick County Circuit Court Judge John Prosser, who had ruled Miller could deny Jenkins custody rights, because she was "the sole biological and natural parent" and therefore "solely has the legal rights, privileges, duties and obligations as parent hereby established for the health, safety, and welfare of" her daughter.

The lower court ruled the federal Parental Kidnapping Prevention Act (PKPA) prevented Virginia courts from interfering in the custody battles in other states. The lower court also said that the 2004 Marriage Affirmation Act (MAA) passed by the state of Virginia, which bans recognition of same-sex unions, would also be preempted by the PKPA.

The public advocacy legal group Liberty Counsel, Miller’s legal representation, had contested the Court of Appeals ruling before the state Supreme Court, saying the lower court was in error to "give full faith and credit" to a Vermont order on parentage and custody without determining first whether Virginia, which does not recognize civil unions, was bound to give rights to Jenkins, the non-related third party.

However the Virginia Supreme Court sidestepped around the issue of Virginia’s constitutional marriage amendment, which bans same-sex "marriage," civil unions, and domestic partnerships, because it became effective January 1, 2007 and was not a matter before the Court of Appeals when it made its original decision.

"This court at the supreme court level never addressed the impact of the constitutional marriage amendment," Miller’s legal counsel, Mat Staver told LifeSiteNews. "So that is an open question that still remains to be litigated and we will begin this process anew at the trial court."

Staver, the founder of Liberty Counsel, informed LifeSiteNews his organization will also petition the United States Supreme Court to review the separate court ruling from the Vermont Supreme Court.

"Essentially we have a little state, the size of which is only as large as some of our cities in Virginia seeking to overturn the marriage policy of the commonwealth of Virginia."

Staver added that his client’s dilemma is very similar to Jennifer Siperko, whom the Court of Appeals ruled, only days ago, had every right to deny visitation rights to her former lesbian partner, because Siperko was the sole fit biological parent (

The crucial difference is that Lisa Miller has to fight off a civil union.

"The difference is that this Vermont court with a civil union is trying to dictate the policy of Virginia," said Staver. "The polices of Virginia regarding this are very clear: parents have strong rights over the direction and well-being of their children to be able to exclude third parties that are not the spouse or that are not the adoptive parent."

"When someone says two things: first ‘I’m opposed to same-sex marriage, but I’m in favor of civil unions’ they don’t know what they are talking about," Staver said, "because civil unions are oftentimes treated legally by the law very similar to same-sex marriage.

"Second: ‘that one state can have its own same-sex ‘marriage’ or unions policy as long as another state does not have to be forced to recognize it.’ The fact is when one states does have a same-sex unions policy, it inevitably seeps over the border and tries to entangle its sister states."

Read the Appeals Court decision affirmed by the Virginia Supreme Court:

See related coverage by

Vermont Supreme Court Upholds Lesbian’s Visitation Rights against Natural Mother’s Wishes

Virginia Court: Biological Parent’s Rights Trump Invented Lesbian "De Facto" Parenthood

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