Source: Boston Herald, Rutland (Vt) Herald, Associated Press via Boston Herald

[post updated 3/14/08 with additional information on the argument from Boston Herald]
The Vermont Supreme Court will once again weigh in on a national headline-making child custody suit stemming from a bitter civil union split.

A three-judge panel of the Vermont Supreme Court's seven justices heard arguments Thursday morning from attorneys representing Janet Jenkins of who now lives in Vermont and Lisa Miller, who lives in Virginia.

The issues at the heart of the dispute involve custody and contact with a child born while the two women were joined in a civil union from Vermont.

Attorneys for Miller and Jenkins on Thursday presented their competing arguments. The justices of the state's highest court are expected to take the matter under advisement.

An attorney for Miller told the panel that the full court's 2006 decision in the same case was wrong because it was based on the assumption that a couple from Virginia could be bound by Vermont's civil union law.

David Corry, who represents Miller, of Winchester, Va., said that since Virginia law prohibits civil unions and same-sex marriage, her former partner, Janet Miller-Jenkins, has no legal standing as a parent.

"Couples in states where same-sex unions are prohibited need to know that Vermont has no power to facilitate the avoidance of laws in their domicile by creating a union in Vermont," said Corry, a lawyer with The Liberty Counsel.

Janet Jenkins' lawyer countered that the case has already been decided and that the ruling should stand.

"All of these issues have been resolved," said Jennifer Levi, a lawyer for Gay & Lesbian Advocates and Defenders who is representing Jenkins.

The hearing was the latest legal chapter in a first-of-its-kind custody battle that has bounced between courts in Virginia and Vermont. Last year, the U.S. Supreme Court declined to get involved.

Neither woman -- nor Isabella, the girl they're fighting over -- was in court for the hearing.

The panel could decide as early as Friday.

Justice John Dooley seemed skeptical of the Miller-Jenkins case being back before the court. "Our first reaction is, isn't this just the same intellectual argument?" Dooley asked Corry, whose organization promotes what it calls traditional family values.

Attorneys say the custody battle between the two women could help set legal precedent at a time when the definition of family is changing in America.

The case has been working its way through the court systems of Virginia and Vermont for more than three years.

Attorneys for Miller asked the court to revisit the issue, which was decided in favor of Jenkins in 2006.

The two Virginia residents were joined in a Vermont civil union in 2000, but later split up. Miller had a child in 2002 and a Vermont family court awarded visitation rights to Jenkins.

Miller's attorneys have challenged Jenkins' parental rights throughout the case, arguing that the rights could not be established by a biological tie and were not established by Jenkins formally adopting the child.

"The argument is that Vermont should not recognize the validity of a civil union when those obtaining it intentionally tried to subvert the law of their home state," Mathew Staver, founder and chairman of the Orlando, Fla.-based Liberty Counsel and representing Miller, said Tuesday.

"The parties came from Virginia where they resided, obtained a civil union, and returned to Virginia where they intended to remain, knowing that Virginia did not recognize a Vermont civil union," Staver added.

Jenkins' attorneys say a final Rutland Family Court order in the case, which granted her regular contact with the child, should stand.

"It's basically (Miller's) attempt to have a do-over at the Vermont Supreme Court," Jennifer Levi, senior staff attorney for Gay and Lesbian Advocates and Defenders in Boston, Mass., who represents Jenkins, said Tuesday.

Rutland Family Court Judge William Cohen, in a final family court order in the case issued in June, awarded Miller custody of the 5-year-old child at the center of the high-profile legal battle.

Cohen's decision, which formally dissolved the one-time couple's civil union, did not end the case. Attorneys representing Miller appealed Cohen's ruling that allowed for "regular parent-child contact" for Jenkins, who had sought custody of the child, Isabella.

Meanwhile, according to her attorney, Miller is still trying to convince courts in Virginia that the judicial system in that state should have jurisdiction over the dispute, not Vermont. Jenkins' attorneys have argued that the dispute should be settled in Vermont.

The Virginia Supreme Court is scheduled to hear a related case next month in which it will decide if Virginia can be required to enforce Vermont's family court ruling in the Miller-Jenkins case, which is at odds with Virginia's constitution, said Corry said.

"We're likely to have conflicting supreme court cases involving the same couple and child. The U.S. Supreme Court may have to decide," Corry said.

Full article: Justices to revisit custody battle: Rutland Herald Online
Vermont Supreme Court hears re-appeal of lesbian custody case | Boston Herald (AP)