In It for the Kids

While divorce proceedings and child custody battles often become contentious, lesbian parents have additional legal hurdles to leap. Some are now finding that they are setting precedence in family case law for same-sex couples, adding intense scrutiny to an already difficult process.

One especially heated case involves Janet Jenkins and Lisa Miller, Virginia residents who entered into a Vermont civil union in 2000 before Miller gave birth to their daughter, Isabella, in 2002. They raised the child together until deciding to dissolve their union in 2003. The couple decided to share time with Isabella until Miller went to her brother's church in 2004 and had a revelation: She no longer wanted to be identified as a lesbian.

On July 1, 2004, the day Virginia's law prohibiting any state recognition of gay relationships was enacted, Miller filed for custody of Isabella, which a judge awarded her. Jenkins sued for visitation, Miller sued for sole custody, and the case went through the court system in Virginia, where the state supreme court granted Jenkins visitation rights. Jenkins, who eventually moved to Vermont, sued in that state for sole custody of Isabella. In 2009, Vermont courts ordered Miller to turn sole custody over of Isabella to Jenkins after Miller failed to adhere to the visitation schedule.

But Jenkins still doesn't have custody of Isabella. In fact, she hasn't seen her since September, 2009 when Miller, who has renounced homosexuality and become an evangelical Christian, went into hiding. Miller's attorneys claim they have not heard from her in months. It has even been alleged that Miller is in South America with Isabella -- in June, the Vermont supreme court heard arguments for the second time regarding custody of Isabella.

Jenkins's attorney, Sarah Star, says that the judge's ruling shows that same-sex couples in Vermont are being treated the same as heterosexual married couples. Additionally, courts in other states states, including Virginia, agree that custody decisions from other state courts are valid in their states under the federal Parental Kidnapping Prevention Act, regardless of the Defense of Marriage Act, which bars the federal government from recognizing same-sex couples as being married.

"Hundreds of children are kidnapped by selfish family members every year, without regard to the child's safety, education, or stability, and this case is no different," Star tells The Advocate. "This type of conduct is outrageous and extremely harmful to children. It is illegal, and there is no law that I am aware of that sanctions what Lisa Miller has done to her daughter."

While the case between Renee Harmon and Tammy Davis may not be as splashy in headlines, it is still illustrative of the problems gay and lesbian parents face in states without any legal recognition of their family status. Harmon and Davis did what many couples do when they got together: They bought a house and began to raise a family. But the couple, like so many others are forced to do, were living without the complete legal protection of marriage since Michigan voted to ban same-sex marriage and any similar arrangements.

At the nine-year mark of their relationship in 1997, Davis wanted to have children, but Harmon was unsure. The couple traveled frequently, and Harmon says she was "a little hesitant just because of bringing kids into the world with so much hate and discrimination."

Eventually, Harmon agreed, and Davis gave birth to a daughter, now 11, followed by twin boys who are now 9 years old. But in 2008, the couple's relationship started to fall apart. Harmon said she remembers receiving a mushy Valentine's Day card that year, but by May, Harmon sensed Davis was involved with another woman. In June 2008, she found out her suspicions were true. The day before their 19th anniversary, they mutually agreed Davis would take their children and move out of their primary home to live in another property they co-owned.

The following eight months were difficult for Harmon, but she said they were working on an amicable breakup, and Harmon was able to visit the children.

But Harmon says once Davis's new partner, Carol, moved in with Davis the following February, the legal problems began. She says Davis started aggressively asking for child support and pressured Harmon to sign the deed of their home over to her. Harmon says Davis and her new partner have severed all Harmon's ties to her children.

Davis's attorney, David Viar, tells The Advocate his client filed a protection order against her ex because Harmon was abusive toward her, a claim Harmon denies. But because of Michigan's 2004 constitutional amendment banning same-sex marriage as well as second-parent adoption for gays and lesbians, there is no legal precedent for Harmon's joint custody case, according to her attorney, Nicole Childers.

"We stand to set the precedent in this situation," Childers says. Because Harmon has acted as a parent for more than a decade for these children, they are arguing that she must have some rights as a parent. Childers says the marriage amendment will come into play "in the sense that courts are going to say, 'You were never married, so we don't have the jurisdiction to allow parenting rights.' However, our claim is that they were never married. Our claim isn't even based on the union per se."

Childers says legal precedent in child custody cases has established the children's welfare must be the focus of determining custody. "To eliminate one of their parents from their life is such a psychological detriment to these children," she says. While gay and lesbian couples in Michigan have no joint adoption rights and you cannot technically "contract for children," she says, "you can sign agreements and power-of attorney records" designating some responsibilities. Before any of their children were born, Harmon and Davis signed an agreement that established them as parental figures, which she says could help their case.

Viar said the case law he's using to build his client's case fully supports Davis's fight to keep the children, since they have no biological relation to Harmon. "Case law that is supportive of our position is stated in our papers, not only with the trial court, but with the court of appeals," he said. "This judge [handling the case] has taken it upon herself to rewrite the definition of what is a natural parent in Michigan. And that's a decision that we do not believe will be upheld in a court of appeals or anywhere else."

Viar conceded that Harmon's possible win in court would not be a boon to gay parents. "[The gay population] is not my client," he said. "But I know it would benefit the children, and my client is more concerned about what would benefit the children, and not necessarily what's right for the gay community right now."

Deborah Wald, an attorney who specializes in family law cases, says it doesn't happen frequently, but there are some gay parents who have used the antigay laws in their states to prevent their ex-partners from seeing their children. At the heart of many decisions are the courts' views of what defines an illegitimate child.

Like marriage rights for same-sex couples, parental rights for those couples are established by a patchwork of state-by-state provisions, where some states completely bar gay people from adopting and others treat them the same as heterosexual, married (or divorced) parents. In Michigan, Harmon and her legal team are coming across small victories as they endure this battle. Since they are setting precedent for custody laws, each progressive step is a victory. In April, a judge ruled that her request for parenting time with the children can proceed to a hearing in July. Because of this ruling, Harmon says she is hopeful for the future of this case.

Viar, however, says the judge is undermining established case law by ruling in Harmon's favor. "It's a definition that my client does not agree with and does not accept and will fight," he says. Despite the promise of more court confrontations to come, Harmon says she will remain as positive as possible in the struggle to gain custody of or visitation rights with the three children she and her former partner raised together.

Before a court date one morning, Harmon's attorney told her to not expect too much, that they might lose a few battles before winning the war. "But what the judge did was let each side present an argument, and then she ruled that if I can prove that we had a planned agreement, we can have joint custody," Harmon says. "It was like a miracle, and we did not expect it. In fact, my attorney cried in court -- it was just so overwhelming."

As Harmon and Davis's case continues, either party may be ultimately establishing case law in their state, setting the precedent for thousands of gay and lesbian couples in Michigan, just as lesbian couples are setting precedents in many states. However, the law still varies greatly in other jurisdictions: In Tennessee, a lesbian couple was granted the right to live together despite an ex-husband's demands that his ex-wife's partner stay away from their children; in Wisconsin, however, a court ruled ex-partners cannot share custody of their nonbiological children after they dissolve their relationship, another ruling based on the state's constitutional marriage ban.