Lisa Miller and her daughter, Isabella (photo courtesy Barbara Curtis)
A Christian mother seeking to protect her daughter from court-ordered time with a lesbian former partner has launched a new round of arguments in the Virginia Court of Appeals.
The new appeal in the case of Lisa Miller and her 6-year-old daughter, Isabella, by Liberty Counsel asks for a determination on whether the Virginia Constitution is the controlling legal authority in the state.
The case is complex, because Miller was in a same-sex “marriage” in Vermont, where her former partner, Janet Jenkins, remains. But Miller’s daughter was born in Virginia, and both live there now. The custody arguments have been conducted in court systems in both states.
The appeal asks the court to refuse to enforce the Vermont custody order, which requires the child spend time with Jenkins, “based on U.S. Supreme Court precedent making a legal distinction between recognition and enforcement,” according to Liberty Counsel.
“While the Full Faith and Credit Clause may require registration of the Vermont order, it cannot constitutionally require enforcement,” the non-profit legal group explained. “Moreover, the federal Defense of Marriage Act exempts states from even recognizing out-of-state, same-sex unions.”
As WND has reported, Miller left the homosexual lifestyle and became a Christian when her daughter was 17 months old. But Jenkins, Miller’s same-sex partner when she gave birth to Isabella, has been seeking full custody of the girl, claiming she was a parent even though she is not biologically related and never sought to adopt her.
The case has been further tangled because while Vermont recognizes the “civil unions” of same-sex partners, Virginia’s constitution specifically bans that recognition.
Judge William Sharp of the Shenandoah County Domestic Relations District Court in Virginia recently ordered Miller to allow Jenkins a three-day unsupervised visit with Isabella. Miller was told that Isabella must visit the mother’s former lesbian partner in Vermont, and if she refused, the law would remove the girl by force, if necessary.
The case has had a twisted path through the courts. A year ago, the Virginia Supreme Court refused to decide whether the Virginia Marriage Amendment prohibits recognition of the Vermont custody order obtained by Jenkins. And the U.S. Supreme Court has refused to resolve the disagreements.
The case also was complicated when Jenkins’ Virginia attorney withdrew “after he was indicted for obstructing justice and tampering with evidence regarding a murder that occurred in his home, where his college male friend was sodomized and killed,” Liberty Counsel said.
The legal group now says the issue of whether the Virginia Constitution prohibits enforcement of the custody order never has been litigated. Jenkins, the group explains, only asked that the order be recognized, not enforced, and the Virginia Constitution was amended to preclude recognition of out-of-state same-sex “marriages.”
Liberty Counsel’s new appeal asks the court to refuse to enforce the Vermont order, because the U.S. Supreme Court has found that recognition and enforcement are not the same, and the federal Defense of Marriage Act exempts states of even recognizing out-of-state, same-sex unions.
“The road toward justice has taken a long and winding path,” said Mathew D. Staver, founder of Liberty Counsel, “but we believe the courts are getting closer to addressing the core issues in this case.
sovereignty, the definition of marriage and family, and the lives of
Lisa and Isabella Miller are all at stake in this case. The people of
Virginia have plainly spoken in favor of traditional marriage and have
rejected same-sex unions. The Virginia courts must now uphold the
Constitution,” he said.
The brief says the absence of case law relates to the fact “that this case is one of the first impressions in the nation.”
It said all of the custody cases cited by the lesbian ex-partner relate to heterosexual couples or adoptive parents.
“[Jenkins] is not asking this court to apply Virginia’s laws on the issue but is asking the court to condone a violation of state law and the state constitution,” Liberty has argued. “Virginia retains the authority to apply its own state laws concerning enforcement of a foreign order that grants [Jenkins] visitation with appellant’s biological child based
almost exclusively on the fact that [Jenkins] was in a same-sex civil union with appellant at the time
appellant gave birth to Isabella in Virginia.”
“[Virginia law] expressly declares rights arising out of a same-sex union as ‘void’ and states they are ‘unenforceable,’” Liberty Counsel has argued.
Miller previously had refused to comply with Vermont’s orders for visitations, claiming Isabella reported being compelled to bathe naked with Jenkins while visiting and came home speaking of suicide.
Liberty Counsel chairman Staver told WND of Isabella’s alleged traumatic visitations with Jenkins.
“She began having nightmares, bed-wetting, fears of leaving Lisa and even tried to physically harm herself after just a couple of visitations,” Staver said. “After having seen that, Lisa just simply said, ‘I cannot put my child in that situation anymore.’”