With Gay Marriage Comes Gay Divorce: The Rise of Lesbian Custody Battles

By Glenn Sacks and Ned Holstein, MD

It’s not every day that America’s conservative Christians rally around the cause of a lesbian. Yet numerous groups are providing support and expensive legal services for Lisa Miller. Miller’s cause? To deny her former civil union partner Janet Jenkins any role in the life of the daughter they raised together.

Miller and Jenkins joined in a same-sex civil union in Vermont in 2000 as Lisa Miller-Jenkins and Janet Miller-Jenkins, and had a child named Isabella Miller-Jenkins together in 2002. Lisa was artificially inseminated from a sperm donor who they chose because his physical traits closely matched Janet’s, who became Isabella’s social mother. According to the Washington Post:

"When Isabella was born, Janet had the honor of cutting the umbilical cord … Lisa and Janet had researched how best to bond with the baby … [at night] ’Every two or three hours, Isabella would wake up so Lisa could nurse her,’ Janet said. ’I would take Isabella from that point. I would burp her … I would rock her. She would go back to sleep on my heartbeat’ … Janet’s parents were enthralled, and embraced Isabella as their newest grandchild."

In 2004 Miller decided to leave Jenkins and move to Virginia, agreeing to a liberal parenting time schedule for Jenkins, who paid child support to Miller. Yet after Miller got to Virginia, she violated the agreement, deciding that she wanted sole custody of Isabella and excluding Jenkins from the child’s life. The Liberty Counsel, a close partner of the late Rev. Jerry Falwell’s Liberty University, has spearheaded Miller’s legal case.

Jenkins, who has helped care for children at day care centers in two states, treasures pictures she has of Isabella helping her in their garden, picking through her purse and playing with wooden trains. "These are hard to look at … we were happy," she says. She remembers how Isabella would say "Uppy" when she wanted Janet to pick her up.

Miller, who became a Christian and renounced lesbianism after leaving Jenkins, even pushed aside Jenkins’ parents, who Isabella adores and who live near Miller. Janet’s dad Bucky, a retired firefighter who’s been married to his wife Ruth for over 50 years, says, "The loser in the whole thing, of course, was the baby."

Vermont judges have seen the dispute Jenkins’ way throughout the case. On Aug. 25 a Vermont court found Miller in contempt, imposing a fine on Miller if she continues to violate Jenkins’ court-ordered visitation.

Miller could have been incarcerated by the court but Jenkins — showing Miller a kindness both unreciprocated and unmerited — told the court she didn’t want Miller jailed. What she wants is to see her daughter. Afterwards, Miller declared that she’s going to continue her legal battle to keep Isabella away from Jenkins "because that’s what a Christian is supposed to do."

Miller is, of course, entitled to choose her own sexuality and religion. But she chose to have a child with Jenkins and shouldn’t be able to obliterate this because it doesn’t fit in with her new orientation and beliefs. And however one feels about gay marriage, it is enormously damaging to children to have one of the two people they love the most in the world — a parent — ripped out of their lives. The saddest part is that children usually blame themselves, asking, "What did I do to make mom not want to be with me anymore?"

Lesbian custody battles are now becoming routine, and dozens of them have been the subject of hotly contested cases in recent years. Some of the biological mothers are so determined to drive the social mothers out of their children’s lives that they even invoke laws which limit gays’ parental rights as a way to win their cases.

LGBT (lesbian, gay, bisexual and transgender) activists believe courts haven’t adequately protected the rights of lesbian social mothers because of the tenuous legal status of gay marriages and relationships, and they’re partly correct. But much of the problem lies in the way courts treat noncustodial parents, regardless of sexual orientation.

Most of Miller’s tactics are well known to noncustodial fathers. According to the Children’s Rights Council, a Washington, D.C.-based children’s advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents.

Miller moved far way from Jenkins as a way to separate Isabella from her — a common tactic in custody cases. Miller pushed Isabella’s grandparents out of their lives — at Fathers & Families we receive thousands of anguished letters from distraught grandparents who were excluded from their grandchildren’s lives after their sons got divorced.

Miller made unsupported claims of abuse by Jenkins. Canadian jurist Bruce Pugsley recently wrote in an opinion that it’s "commonplace" for the system to be manipulated by estranged spouses claiming abuse, "no matter how remote the assault may be in time or, indeed, how trivial the contact." Many legal experts have voiced similar concerns.

Children, heterosexual noncustodial parents and lesbian social mothers like Jenkins all need the same thing — strong legal protections for parent-child bonds. This begins with a rebuttable presumption of shared custody after a divorce or separation.

Under this presumption, as long as both parents are fit, they will both have the right to share equally in raising their children. These presumptions do exist in some states, but they are generally weak and too easily evaded.

Moreover, courts need to enforce their own visitation orders, instead of allowing custodial parents to flout orders year after year with little or no consequence. When abuse charges are made, they need to be investigated seriously and quickly, and there need to be consequences for false accusations. Judges fighting overcrowded court calendars instead tend to "err on the side of caution" by upholding abuse claims. False accusers rarely suffer any penalty, while children must bear the loss of a parent.

Jenkins echoes the pain of millions of non-custodial parents when she describes what it has been like losing little Isabella:

"There is a part of me missing. I feel like my heart has been ripped out beating."