Miller v. Jenkins: One Gay Couple's Custody Battle

Isabella prefers to skip rather than walk down the long halls of the Thomas Road Baptist Church in Lynchburg, Va. With each springy step, the first grader's butterfly-print dress puffs full of air, giving her the appearance of weightlessness. She swings a bag of gummy bears in one hand, and in the other, a Sunday-school coloring sheet that reads "Obey God." One particularly high ballerina leap sends gummy bears skidding across the polished floor of the church and stops Isabella dead in her tracks. The dress deflates. Her mother Lisa Miller senses an imminent meltdown and starts counting down: "Five, four, three …" and by one, the little girl has all the candy in her hand again. "You beat the five-second rule," says Miller, "so it's still good." And with that, Isabella smiles, revealing a gap where two front baby teeth used to be, and stuffs the candy back in the bag. Skipping resumes.

Isabella hardly knows that she's at the center of a much bigger drama, a landmark custody battle between two women—both of whom she calls Mommy. Her parents are Miller, 40, who's fighting for exclusive, sole custody, and Janet Jenkins, 44, who's arguing for parental and visitation rights. Their case is the first to tackle the recognition of same-sex unions, marriage and the rights of homosexual parents across ideological, biological and state lines. And, uniquely, across religious lines once Miller became a devout Baptist, renounced her homosexuality and said she was determined to protect her daughter from a "lifestyle that's fundamentally wrong." Miller is Isabella's biological mom and lives with her daughter in Virginia, a state that does not recognize gay unions or marriage. Jenkins lives in Vermont, where she and Miller were happily—and legally—joined in a civil union eight years ago, and where the couple raised Isabella until they split when the child was just 17 months old. Since then, Miller has argued that her former partner—who has no blood tie to Isabella—also has no parental rights. "It would be like handing my child over to the milkman," she says. Jenkins disagrees. She says that as Miller's former legal partner who was at the IVF clinic when her daughter was conceived, and in the delivery room to catch her when she arrived, she should have visitation rights "like any other parent."

The women's exhaustive four-and-a-half-year legal battle has been argued in courtrooms from Fredericksburg to Burlington, their private lives scrutinized by countless attorneys, judges and in the court of public opinion. How often did Jenkins really burp the baby? How mentally stable is Miller? Could Jenkins's homosexuality have a bad influence on the child?

The limits of tolerance are being tested by this polarizing battle, as are the boundaries of our legal system. As more and more gay couples turn to IVF and adoption to have families of their own, the courts will surely find themselves tangled in more cases of mom against mom or dad versus dad. The fact that gay unions and marriages are legal in some places and not others is a large part of the conundrum. For opponents of same-sex marriage, it's proof that as more cases migrate, all states will be forced to legally recognize these homosexual partnerships. For gay-rights advocates, it's further evidence that the uneven patchwork of laws concerning same-sex civil unions and marriage may promise them equality in one locale, but leave them vulnerable in another. This all comes at a time when opinions regarding homosexuals as parents are shifting. A recent NEWSWEEK Poll found that support for the adoption rights of homosexuals is up 8 percentage points (45 percent to 53 percent) from 2004, and when it came to the question of rights for nonbiological gay or lesbian parents who've divorced, 63 percent of our respondents said that the partner who is not blood-related should still have custody rights and a decision-making role in the child's life. But when these cases do wind up in litigation, the custodial rights of gay parents come down to a confusing mess of variables: where the union or marriage was performed, where the case is fought, how the child was conceived and if "second-parent adoption" forms were filed by the nonbiological parent before the dissolution or divorce. Still, more and more same-sex couples are willing to give love, commitment and family a shot, regardless of the risks.

Inside Janet Jenkins's old, two-story home in the quaint town of Fair Haven, Vt., photos of Isabella as a chubby baby, as a toddler with Grandma and Grandpa and as a preschooler smelling flowers can be found in every room. "Ah, she's wearing red in this one. I love her in red," says Jenkins, smiling. The outgoing, 5-foot-2 strawberry blonde runs a licensed day-care center out of her home five days a week, and counsels women with substance-abuse problems in a halfway house during her off hours. Jenkins, who has 12 years of sobriety under her belt (she met Lisa at an AA meeting), doesn't like to talk about the litigation but warms up when the conversation turns to her daughter. She points out Isabella's room on the second floor, where a clothes rack is bare save a bright-pink Hello Kitty! backpack and a flowered bathing suit. Both items still have the tags on them.

Jenkins hasn't seen her daughter since spring because she says Isabella's other mom—who's in contempt of court for not adhering to visitation schedules—continues to withhold the child. "I really hate talking about it because I have to feel it all over again," says Jenkins, sitting at the kitchen table in the home where she'd planned to raise her family. "I did not divorce my child, I divorced my partner. Yet I've missed out on my child's kindergarten graduation. I'll never get that back. I don't even get to talk to my daughter on the phone. It's heinous what has transpired."

So what exactly has happened? For one, Lisa Miller rediscovered her Baptist faith and now regards homosexuality as a sin. It was a life change she decided upon while listening to a sermon in her brother's church in 2003, just months after splitting with Janet. The pastor was preaching about sin and repentance, two subjects that hit a chord with Miller. She says she'd been ignoring that voice in her head for years—the one that told her homosexuality was wrong—and now the message was too loud to suppress. "I realized, Wow, I say I'm saved, but how can I be if I haven't repented, if I've been living in sin all these years in a same-sex relationship?" says Miller, who is 14 years sober and now teaches in a Christian high school. "I knew what I was doing was wrong. It says so in the Bible. God says hide the word in your heart and it will never leave you. That's when I confessed, and believed, and asked for forgiveness of my sins." Miller is now deeply involved in her Lynchburg, Va., church, which was founded by the late Jerry Falwell. Her fellow parishioners know of Miller's story through her Only One Mommy blog, other conservative Christian Web sites and prayer alerts issued by her legal team, Liberty Counsel. She receives plenty of support from the Baptist community (her computer and car were donated anonymously through another church) and is often flanked by others who've renounced their homosexuality and joined the faith.

After a recent Sunday service in the enormous Thomas Road church, Miller relaxed in the quiet of a small room usually reserved for nursing mothers. She wore a simple, floral-print dress and a pair of comfy, Birkenstock-like sandals, her dark hair pulled back in a single barrette. Her demeanor was calm, and she spoke in thoughtful, measured tones about her past life, her daughter and the nearly five years of litigation. It started with a simple dissolution of their union in late 2003, which both women agreed to. The Vermont judge issued a temporary visitation order in June of 2004, but within a month, Miller filed for sole, exclusive custody in Virginia. That judge ruled in Miller's favor on the ground that the union between her and Jenkins was not legally recognized in Virginia. Jenkins fought back, and after years of litigation that found Falwell's legal arm and the ACLU stepping in, the case wound up in the Virginia Supreme Court. In June of 2008, the earlier Virginia trial-court ruling was reversed and Jenkins was awarded parental and visitation rights. The enforcement of the visitation schedule is now with the Virginia Juvenile Court. But Miller is still refusing to allow Isabella unsupervised time with her ex; if she continues to stonewall, Jenkins may be awarded full custody of Isabella, and Miller may wind up in jail.

But Miller thinks it's a risk worth taking. "I do not feel safe leaving my daughter with her, and I believe I have a God-given and constitutional right to raise my child as I see fit," says Miller, who is currently single but hopes to meet the right man someday. "There is a homosexual agenda at work here, and Isabella is a pawn in their game. It has nothing to do with the law. Isabella was saved at age 4, loves God, and knows what's right and what's wrong. We don't hate Janet, we pray for her soul and salvation."

Jenkins, who lives 550 miles up the coast from Miller and the Thomas Road church, doesn't believe that her ex-partner has rediscovered the faith, or that she's a reformed homosexual. She feels that Miller is using the church to help her case, and to get back at Jenkins for "whatever she's still mad about." The toll of the struggle is obvious when Jenkins talks about the countless court dates, and the charges by Miller and her legal team that she is somehow using Isabella as a homosexual advocate trophy. "That couldn't be further from the truth," says Jenkins, blowing a few short, wispy hairs off her forehead. "I would rather not see my name out there and not see my child exposed to any of this. I just want time with my kid. She is the love of my life, and I'm involved in this because I won't abandon her."

Isabella knows a little bit about what's going on between her two mommies. "She knows there's a judge," says Miller, "she knows what the judge is saying. She knows how she was conceived. I told her all that before she was 5." Jenkins says that she's read Isabella "Heather Has Two Mommies" so she'd know what to say when others asked about her parents, but has avoided talking about "all that other stuff" in front of her daughter. " Isabella has done nothing to deserve this," says Jenkins. "If she was 12 years old and said, 'You're a homosexual and I don't want you in my life,' I would let it go. I would say I will always be there for you when you need me. But today, it's not Lisa's choice to make for a little 6-year-old."

But the divorce, and the ensuing battle, has affected Isabella. Jenkins says when she and Miller split, she helped her soon-to-be estranged partner relocate to Miller's brother's home with the baby. During the nine-hour drive to Winchester, Va., both mommies had to hold the toddler's hand to keep her from wailing. More recently, Miller has claimed she witnessed disturbing behavior in her daughter after visits with Jenkins, such as masturbating in public and putting a comb to her throat, threatening suicide. "What 6-year-old does and says these things?" says Miller, who tries to avoid mentioning Janet's name in front of Isabella. "I'm not sure what's going on when she's with Janet, but I know what happens right afterward. Isabella does not want to go back." Miller leveled child-abuse allegations against her ex-partner last year. The claims were investigated by Virginia's Child Protective Services and deemed "unfounded." Still, Miller is petitioning to have this matter heard in court.

The molestation charges, says Jenkins, are ridiculous. Her time with Isabella has not revealed any deep disturbances, just a few uncomfortable questions about a judge's ruling or where she'll spend the next holiday. Otherwise, she says, Isabella acts like any other kid her age, whether they're attending a pumpkin patch fair near her grandparents' home in Virginia or simply checking out books at the local library. "She doesn't look at me and go screaming the other way," says Jenkins, laughing. "She hugs me, calls me Mommy, and we have fun."

Jenkins grew up in Falls Church, Va., with three siblings and devout Catholic parents. She attended parochial school from kindergarten through 12th grade, though she begged her parents to go to a secular, public school. By 19, she was already contemplating marriage. "I was engaged to a man," says Jenkins. "I tried not to be this way, but I just couldn't live a lie. Coming out for me was hell." She began binge drinking, an addiction that intensified after her brother Ricky committed suicide when she was 22. Shortly thereafter, Jenkins joined AA, "cleaned her life up" and met her partner of the next 12 years, a woman who was a Republican fundraiser (Jenkins worked as an office manager for a local florist). Jenkins says the two split in 1997 because she wanted children and her partner did not. Three months later, she met the woman who would change her life forever.

Miller grew up a few miles away from Jenkins in Arlington, Va. Her parents divorced when she was 7, and she was left to live with her mother, whom Miller claims was a paranoid-schizophrenic. She says her mother sexually and physically abused her as a child and later, forbade her to date, telling her "men were evil." Miller turned to the local Baptist church for solace, spending every free hour attending Bible study, organizing fundraising events and proselytizing door-to-door. She enrolled at James Madison University, where she earned an undergraduate degree in psychology and met the man she would marry at age 22. Miller recalls she first began drinking with her husband, and after the couple split two years into the marriage, she began to drink more heavily. Miller became so depressed, she said, she tried to kill herself by slitting her wrists, and ended up in intensive care, where she was referred to a psychology ward. There, she said counselors suggested she may be homosexual. "They then funneled me into these gay-support groups, and I wasn't even sure if I was," she says, laughing. "I think I just wanted to belong to a group." Miller—who was working in the child-care field—met a woman whom she lived with for two years. Then, right after her mother's death in 1997, she met Jenkins.

Jenkins and Miller do agree on one thing—they were both on the rebound when they met that day in a Falls Church AA meeting. Miller, then 29, was mourning her mother's death while Jenkins, 33, was not yet over her former, longtime relationship. "Looking back now, I can see now that Lisa honed in on the one thing that was missing in my life, the thing I was willing to get into another relationship for—family and children," says Jenkins. But as Miller tells it, it was Jenkins who zeroed in on her vulnerable state. "I was sharing at a meeting about the way my mom died," recalls Miller. "She'd been dead for almost two weeks in her home, without anybody knowing, when I found her," says Miller. "It was horrible and I was in shock. After the meeting, Janet came up to me. From there on, it was a really fast relationship."

Within six months, Miller moved into Jenkins's home in Falls Church, and they later opened up their own child-care business. When same-sex unions became legal in Vermont in late 2000, they took the nine-and-a-half-hour car ride up to a resort in Stowe, where they were joined in a civil union on December 19. They honeymooned in the tropics. Soon after, they began trying for a baby. The couple decided that Miller would carry their baby since she liked the idea of "being big and pregnant." After nearly a year of tests and procedures, Miller finally became pregnant at an IVF clinic near their home with sperm from donor No. 2309, and Isabella Ruth Miller-Jenkins was born April 16, 2002. "It was just amazing," says Jenkins. "Everyone was there—my parents, our friends, everyone. We were all so happy."

The family soon moved to Vermont, where they bought a big house with plenty of room for more kids. But by the time they were trying for another child in the spring of 2003, things were deteriorating. Miller says Jenkins had become verbally and physically abusive, and wouldn't allow her to leave the house, while Jenkins says Miller became mentally unstable and reclusive, and refused to seek professional help. Both women deny the charges, and even disagree on what happened after the IVF treatments. Jenkins says Miller miscarried in the first trimester, while Miller insists she never was pregnant. Regardless, the two amicably split in 2003 after their failed attempt at a second child. Until that point, Miller says, she begged Jenkins to file adoption papers, because she didn't want Isabella to end up as a ward of the state if something happened to her. "I was told we didn't need to because we had the civil union," says Jenkins. "God, if I had only known."

Within a year of their separation, Miller filed to dissolve the civil union and obtain legal custody of the child while still allowing Jenkins visitation rights. Jenkins paid child support and saw her daughter according to a schedule the two moms brokered themselves. But they still fought on the phone, and in person, over everything from how Isabella should be raised to questions about who was now dating whom. "She had plenty of opportunities to visit in those months prior to me filing [for sole custody]," says Miller. "But she kept calling and saying she wasn't coming. In my opinion, she made it clear that she wanted no part." Jenkins says Miller withheld Isabella from her, even after she'd drive her old Toyota minitruck all night from Vermont to spend time with her daughter. "Lisa would get mad and then cut me off," says Jenkins. "I remember once she thought I was dating someone new, and she withheld Isabella from not only me but also my parents. They had sent Isabella a valentine, and Lisa sent it back saying, 'You're Janet's parents and that means you are no longer Isabella's grandparents.' My mom said, you know, I don't want to tell you this, but it's like being kicked in the stomach."

Finally, on July 1, 2004—the very day Virginia enacted a new statute (the Marriage Affirmation Act) prohibiting any legal recognition of same-sex marriages or civil unions—Miller filed for sole custody, and a Virginia judge awarded it to her. She'd also accepted pro bono representation from Florida's Liberty Counsel, a legal firm whose goal is "advancing religious freedom, the sanctity of human life and the traditional family." It receives partial funding from the late Jerry Falwell's church, and Miller's main attorney, Mat Staver, is its founder as well as dean of Falwell's Liberty University School of Law. "Lisa Miller's case illustrates two things in regards to same-sex marriages," says Staver. "First, one state cannot adopt same-sex unions without affecting the sister states. It's simply impossible. Secondly, these cases are about real people, and children are particularly caught in the tangled legal web of same-sex marriage, and Isabella is a classic example."

Love and conflict don't ADHERE to state boundaries, and when all that stuff does spill over, it can prove messier than the Exxon Valdez. Like Staver, Jenkins's pro bono attorney, Joseph Price, knows this all too well. A Washington, D.C.-based lawyer, he has served on the board of Equality Virginia, a gay civil-rights group. "You cannot just shop your case around in different states until you get a ruling in your favor," says Price, a gay father of two who's worked on many cases involving same-sex marriages and civil unions. "And that's essentially what Lisa has tried to do."

In court, Price persistently cited the Federal Kidnapping Prevention Act (created to stop parents from taking their kids to another state when they don't agree with the original ruling). Staver used Virginia's Marriage Affirmation Act and the Federal Defense of Marriage Act (the latter says states can deny recognition of same-sex marriages that are deemed legal in other states) to bolster his client's case. Last June, it was decided that the kidnapping law trumped the marriage acts, and the Virginia Supreme Court ruled in Jenkins's favor. Miller's legal firm hopes to challenge the rulings upheld in Vermont and Virginia by petitioning the U.S. Supreme Court to hear their case (they've had two requests denied and recently filed a third). As it stands, the outcome of Miller v. Jenkins represents a victory for the rights of gay parents.

Isabella doesn't have a lot to say about the litigation or its cultural and political impact. Like any other 6-year-old, she's more interested in messing with the sugar packets on the table during lunch than contributing to an adult conversation. Inside a pizza place in a strip mall in Lynchburg, the girl pours creamer in Miller's coffee then carefully stirs. "Swirly, swirly," she says with a lisp. When the pizza arrives, Miller asks Isabella to say grace. With her hands clasped in front of her face, she begins, "Heavenly Father, thank you for . . . " but quietly opens her hands throughout the prayer to play a secret game of peek-a-boo with a lunch guest across the table. Her biological mother has racked up thousands of dollars in fines for all the visitation dates she's failed to comply with, but the placid schoolteacher is not worried about her contempt of court, or the mounting fines. She believes God will protect her. And her other mother—who's remained single—says she would like more children, but will wait until her future with Isabella is settled. In the meantime, the little girl they both vie for has her own set of priorities: like stirring the coffee just so, making sure to never spill a drop.