Sunday, January 03, 2010

The parenthood of Janet Miller-Jenkins

A case between two lesbians (one of whom now claims to be ex-gay) in America has been at the periphery of my attention the past couple of months.

I don't have time to get all the links together right now, but here's the situation as I understand it: Lisa Miller and Janet Jenkins got a civil union in Vermont. While living in Virginia, they had a child together, with Lisa conceiving through artificial insemination from an anonymous donor. Sometime later they separated. Under the terms of the dissolution of the civil union filed in Vermont by Lisa, Lisa would have custody of the child and Janet would have visitation rights. This did not happen, with Janet being refused visitation by Lisa after just one visit. Lisa then filed a new petition in Virginia requesting that the Virginia (not Vermont) court system grant Lisa exclusive access to the child, and deny any visitation rights to Janet, on the basis that same-sex marriage was illegal in Virginia, and that Janet was not really the child's parent (this in spite of the fact that the Vermont family court had ruled that she was).

The upshot: a 2006 Vermont Supreme Court ruling claiming that Vermont had exclusive jurisdiction over the issue, based on a law called (I think) the Parent Kidnapping Protection Act which explicitly prevented attempts at "jurisdiction shopping" in child custody disputes. In 2008, the Virginia Supreme Court also ruled that it was Vermont, not Virginia, that had jurisdiction. Finally, on November 20, the original Vermont judge that awarded custody to Lisa found Lisa in contempt of court and switched custody to Janet on the basis that this was the only way to ensure equal access to the child. Upon expiration of the time allotted for Lisa to give up the child, both Lisa and child vanished without trace.

Anti-gay arguments in support of Lisa's decision to go on the lam place much focus on the claim that, as biological parent, Lisa's needs should take precedence no matter what the law says. In the more extreme version of the argument, giving the child over to Janet is described by anti-gays as equivalent to forcing a mother to give her child over to the milkman.

So, I've found the 2006 Vermont Supreme Court ruling online, available here. The relevant section on the question of parenthoood, and why Janet Jenkins has it, is in paragraphs 56 to 58:
56.  Many factors are present here that support a conclusion that
Janet is a parent, including, first and foremost, that Janet and Lisa were
in a valid legal union at the time of the child's birth. The other factors
include the following. It was the expectation and intent of both Lisa and
Janet that Janet would be IMJ's parent. Janet participated in the decision
that Lisa would be artificially inseminated to bear a child and
participated actively in the prenatal care and birth. Both Lisa and Janet
treated Janet as IMJ's parent during the time they resided together, and
Lisa identified Janet as a parent of IMJ in the dissolution petition.
Finally, there is no other claimant to the status of parent, and, as a
result, a negative decision would leave IMJ with only one parent. The
sperm donor was anonymous and is making no claim to be IMJ's parent. If
Janet had been Lisa's husband, these factors would make Janet the parent of
the child born from the artificial insemination. See generally People v.
Sorensen, 437 P.2d 495 (Cal. 1968). Because of the equality of treatment
of partners in civil unions, the same result applies to Lisa. 15 V.S.A. §

¶ 57. Virtually all modern decisions from other jurisdictions
support this result, although the theories vary. See e.g., Brown v. Brown,
125 S.W.3d 840, 844 (Ark. Ct. App. 2003) (husband estopped from denying
child support where husband knew wife was using artificial insemination to
have child); Sorensen, 437 P.2d at 498-500 (Cal. 1968) (husband is lawful
father of child conceived through artificial insemination born during
marriage to child's mother); In re Buzzanca, 72 Cal. Rptr. 2d 280, 286-87
(Ct. App. 1998) (finding virtually all decisions hold husband to be parent
based on his consent to artificial insemination); In re M.J., 787 N.E.2d at
152 (mother of children conceived through artificial insemination may seek
to establish paternity of man with whom she had ten-year intimate
relationship based on theories of "oral contract or promissory estoppel");
Levin v. Levin, 645 N.E.2d 601, 604-05 (Ind. 1994) (husband who orally
consented to artificial insemination of wife estopped from denying
fatherhood of child); R.S. v. R.S., 670 P.2d 923, 929 (Kan. Ct. App. 1983)
(husband who orally consented to artificial insemination of wife estopped
from denying fatherhood); State ex. rel. H. v. P., 457 N.Y.S.2d 488, 492
(App. Div. 1982) (wife estopped from denying husband's paternity where she
fostered parent-child relationship); Brooks v. Fair, 532 N.E.2d 208, 212-13
(Ohio Ct. App. 1988) (public policy disallows wife from denying paternity
of husband where parties agreed during marriage to conceive via means of
artificial insemination); In re Baby Doe, 353 S.E.2d 877, 878 (S.C. 1987)
(husband is legal father of child where he consented to artificial
insemination of wife during marriage); see generally A. Stephens,
Annotation, Parental Rights of Man Who Is Not Biological or Adoptive Father
of Child But Was Husband or Cohabitant of Mother When Child Was Conceived
or Born, 84 A.L.R.4th 655 (1991). Some courts find the party a parent as a
result of contract theory or estoppel. E.g., R.S., 670 P.2d at 928.
Estoppel is often invoked because of the strong reliance interests that
arise from consensual artificial insemination. Other courts reach the
result more as a matter of policy, particularly stressing the adverse
consequences of leaving the child without a parent despite the clear
intention of the parties. E.g., Brooks, 532 N.E.2d at 212-13. We adopt
the result in this case as a matter of policy, and to implement the intent
of the parties.

¶ 58. This is not a close case under the precedents from other
states. Because so many factors are present in this case that allow us to
hold that the non-biologically-related partner is the child's parent, we
need not address which factors may be dispositive on the issue in a closer
case. We do note that, in accordance with the common law, the couple's
legal union at the time of the child's birth is extremely persuasive
evidence of joint parentage. See People ex. rel. R.T.L., 780 P.2d 508, 515
n.11 (Colo. 1989) ("We acknowledge that the presumption that a child born
during wedlock is the legitimate child of the marriage was one of the
strongest presumptions known to the common law."); Cicero v. Cicero, 395
N.Y.S.2d 117, 117 (App. Div. 1977) (presumption of legitimacy attached to
"issue of the marriage"); LC v. TL, 870 P.2d 374, 380 (Wyo. 1994) ("The
presumption of legitimacy is one of the strongest in the law."); see also
Godin, 168 Vt. at 522, 725 A.2d at 910 ("Thus, the State retains a strong
and direct interest in ensuring that children born of a marriage do not
suffer financially or psychologically merely because of a parent's belated
and self serving concern over a child's biological origins.").

Needs to be summarised for the attention-addled, obviously, but that's the argument. Unsurprisingly, most people that take Lisa's side in this dispute haven't even glanced at it.

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