Burlington, Vermont - November 23, 2009
A Vermont judge has transferred legal custody of a child to the mother's former lesbian partner. It's the latest chapter in a bitter legal battle that has been waged in several courts in two states. This is a case where a judge says the long-term harm to a child is threatened more by one parent's refusal to comply with court-orders than moving the child to a new home in Vermont.
Since 2003, Janet Jenkins and her former civil union partner Lisa Miller have battled over custody and visitation rights of their daughter.
Miller, the child's biological mother, moved to Virginia, renounced her former lesbian lifestyle and tried to have Miller excluded from the child's life entirely.
The Supreme Court eventually ruled that Miller would get legal custody of the child, and Jenkins would still retain parental rights and court-ordered visits.
But Miller reportedly refused to make the child available for the court-order visits, and last week Vermont Family Court Judge William Cohen reversed custody, transferring it to Jenkins and making the biological mother Miler the non-custodial parent with visitation rights only.
In his 21-page decision the judge writes that..."Ms. Miller's interference with the relationship between (the child) and Ms. Jenkins have become so pervasive that it now outweighs the potential harm that could occur to the child by a chance of custody."
"Even though it's hit the headlines because this happens to be a same-sex couple, this is a very basic family law that we're talking about," said Family Court lawyer Kurt Hughes.
Burlington attorney Kurt Hughes conducts seminars on family court issues for Vermont lawyers. He says Miler ignored may warnings to abide by the visitation orders, and it is not unusual for family judges to reverse custody when one parent refuses to cooperate.
"There's something called parental alienation syndrome, in which one parent is constantly bad mouthing the other parent. And so the courts over the years have decided that the potential long term psychological impact to a child from that type of behavior is much greater than the temporary disruption that would result from a child changing households from one parent to the other," said Hughes.
In response, Miller's lawyer Mathew Staver says she will appeal the ruling in Vermont and Virginia. He told Channel 3, "The judge's ruling defies reality. Isabella has never known Janet as a parent. Forcing her to move in with Janet In Vermont will tear apart her life."
Janet Jenkins was pleased with the ruling and says,"my daughter completely knows me. We were together ten months ago. I mean, she adores me. She calls me Mama."
The custody order is scheduled to take effect in January, depending on what happens with the appeals. Janet Jenkins says she never would have sought sole custody, but she's excited to have her daughter come live with her in Fair Haven.
If Lisa Miller fails to comply with this order, it could result in serious penalties including possible jail time.
Brian Joyce - WCAX News