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Mother must transfer daughter to former lesbian partner

December 29th, 2009

The l on the disputed custody of Isabella. Miller has apparently disappeared with her child, rather than comply with the court order to surrender her daughter to a woman she used to have sex with.

Lisa Miller and Janet Jenkins were joined in a Vermont civil union in 2000. Isabella was born to Miller through artificial insemination in 2002. The couple broke up in 2003, and Miller moved to Virginia, renounced homosexuality and became an evangelical Christian.

(Judge) Cohen awarded custody of the girl to Jenkins on Nov. 20 after finding Miller in contempt of court for denying Jenkins access to the girl. 

The judge said the only way to ensure equal access to the child was to switch custody. He also said the benefits to the child of having access to both parents would be worth the difficulties of the change.

This is the most recent press release from Lisa Miller’s attorney at Liberty Counsel.

The Vermont trial court recently ordered that Lisa must give up custody of her daughter and place custody with Janet, despite the fact that the same court has repeatedly found Lisa to be a fit parent of Isabella. The Vermont court has ordered the transference of custody to take place by January 1, 2010.

Unrefuted testimony has shown that for the last five years, Janet has neither attempted to phone nor write Isabella. She has never sent Isabella a card of any kind for any occasion. Janet has refused to attend Isabella’s Christmas plays, because she does not want to be around a Christian environment. She has also said that it is not in Isabella’s best interest to be raised in a Christian home.

The court is ordering a perfectly fit parent to surrender custody of her child to a person who is not related to the child, either by blood or adoption. Why? Because she used to have sex with this person, and this person is claiming parental rights.

Contrary to what the court claims, I don’t think this is at all like a heterosexual custody dispute. This is more like a custody dispute between a parent and a stepparent, who claims parental rights to a child that he/she never adopted.

For the court to assign itself the power to say, this person has “enough” of a relationship to count as a parent, is way too much power.

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  1. Chairm
    January 1st, 2010 at 09:23 | #1

    As you said, Jennifer, the court is taking a novel approach since the child is unrelated to the second woman — biologically or through adoption. Also, the approach is not based on criteria for establishing the second woman as a “de facto parent”. This is based solely on civil union status.

    And that is drawn from a highly abstract version of the marital presumption of paternity. The sexual basis for presuming a husband the father of the children born to his wife during their marriage, that sexual basis is the same as it is for consummation. But it cannot apply to whatever an all-female arrangement might do sexually. Yet civil union status comes with a default position that the second woman is the ‘father’ or father-like parent of the civil united mother.

    It is a very big stretch.

    In a civil union of two women, there can be no presumption of paternity. And in this case there is no sexual basis to presume the second woman is mother of the mother’s child. The default position has become that the unrelated woman is artificially deemed to be related to the mother’s child — not via a child-adult relationship but via the adult-adult relationship.

    Consider the contrast with marriage.

    Most married couple who use IVF do not use ‘donor’ gametes. Something like 90% use the husband’s sperm and another 3-5% mix his sperm with a ‘donor’. Of course in one-sexed scenarios, third party spermis used 100% of the time. And this is a key point.

    When a married women uses ‘donor’ sperm via a clinic, her husband must expressly agree. This is how the law carves out a special exemption to the criteria for rebuttal of the marital presumption of paternity. In effect, the ‘donor’ pre-emptively relinquishes parental status and the husband adopts the child born to his wife. The practice sits in a grey area and resembles step-father adoption where a married man adopts the child of his bride, provided that the father’s parental status had been relinquished. This accomodation — both in terms of step-father adoption and the exemption to the marital presumption — arises from the societal significance of providing a child a father married to the mother.

    That is to say, the solidarity of fatherhood and motherhood is ensured through marital status. The segregation of fatherhood and motherhood is ensured through civil union status.

    The marital presumption of paternity can be rebutted via sexual criteria — i.e. the lack of opportunity for the husband to have been impregnated his wife. Courts are reluctant to intrude upon intact marriages and so outsiders, such as adulterous partner, generally do not have standing to rebut the marital presumption. This protects the child, the father, the mother, their marriage, and the social institution of marriage.

    The use of IVF by most married couples fits these criteria; and the enabling statutory exemption for ‘donor’ scenarios requires mutual agreement within the marriage. In that way it is also like adoption by married couples. This scenarios are directly related to the core meaning of marriage: for each child both a mother and a father.

    However, this case is far removed.

    With civil union there is no criteria for rebuttal of the default position that both women are co-equal mothers to the child born during their civil union. As I said, the de facto criteria are not in play. And no sexual basis — such as the two women having engaged in same-sex sexual behavior during civil union. And there is no requirement for mutual agreement because the second woman cannot be presumed the father of the mother’s child — not via the marital presumption of paternity’s sexual or social basis. The default is double maternity.

    Some potential scenarios may shed more light on the significance of this over-stretching.

    Suppose a civil union partner is sexually unfaithful and is impregnated by a man. The child is born to the civil union. Does the second woman have standing to rebut the presumption of double maternity? On what possible basis? Does the man have standing to intrude via the court to establish his paternity?

    Well, unlike the express agreement of a husband re IVF, the second woman’s agreement is not required for the double-maternity presumption re IVF and not automatically in play in other forms of third party procreation. The sexual basis is nonexistent so there is nothing to rebut there. Double maternity automatically comes with civil union status. And she has no sexual basis for challenging it.

    New ground would have to be covered. Is there societal interest in protecting an intact civil union from the male outsider? If yes, then, that would create a direct conflict with the societal interest in the presumption of paternity that unites fatherhood and motherhood even outside of marriage. The civil union presumption leans the other way.

    That conflict shows the difficulty in treating civil union (or SSM) exactly like marriage. If the two-sexed basis of marriage is deemed “hateful”, then, what of the opposite-sexed basis of motherhood-fatherhood? Something has to go to eliminate different treatment.

    Intentions of the two women don’t seem to be decisive, either, in this case. This civil union double-maternity default leaves the door wide open for 1) an adult-child relationship imposed against the wishes of the mother and 2) a forced adoption on both the child and the second woman and the mother against their wishes.

    Strangely, the gaycentric argument for use of ‘donor’ gametes assumes that the woman is a lone procreator. That ought to cut out the second woman whether or not there is a civil union. If there is no sexual basis for the double-maternity presumption (and there is not), then, on what basis can society require express mutual agreement within a civil union? It might make things more clear — based on intentionality — but how can that fit with the lone procreator argument? And if either adoption or parental status can be imposed against the wishes of those involved, is not intentionality profoundly eroded?

    All of that said, it becomes obvious that the government, via the judiciary, has grabbed far too much power to intrude upon families. These questions won’t be limited to civil union scenarios — nor to one-sexed scenarios. There are extensive implications for society when we try to act as if fathers do not really matter were there are two women involved. If the pendulum swings tentatively back, maybe civil union scenarios will lead directly to tripartite co-equal parental status — two mothers and a father — and from there marital status (or at least civil union marriage-like status) for threesomes.

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