Vermont Family Court Judge William Cohen ordered Lisa Miller of Winchester, Va., to turn over daughter Isabella to Janet Jenkins of Fair Haven at 1 p.m. Friday at the Virginia home of Jenkins' parents.This is going to be scary for the girl.
Miller and 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.So Jenkins was only present as a custodial parent in the girl's life for how long? Less than two years max, and possibly a lot less time - while the girl was too young to form lasting memories. The girl is with the woman who gave birth to her and has been rasing her. She is seven now. Miller is her mother in every respect.
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.Why is it important for the girl to see Jenkins? What does Jenkins offer the girl that Miller can't?
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.How, I wonder? The girl already has a mommy.
When Cohen dissolved the civil union, he awarded custody to Miller but granted liberal visitation rights to Jenkins.What a mess. The same as a heterosexual couple? How? Jenkins did not carry her, did not raise her, and as far as I can tell, is not biologically related to her. At least a father would offer the girl a... father! We're not talking a twelve-year-old who, for the past twelve years, has been raised by both women.The supreme courts of Virginia and Vermont ruled in favor of Jenkins, saying the case was the same as a custody dispute between a heterosexual couple. The case was appealed to the U.S. Supreme Court, which declined to hear arguments on it.
I would like to know if Miller has a husband or fiance - if she is providing her girl with a father figure, such as her grandfather.
If Miller does not turn over Isabella, the most likely scenerio is that she would be held in contempt of court and a warrant would be issued for her arrest, said Cheryl Hanna, a professor of constitutional law at Vermont Law School.There is a difference. And actually parenting makes a difference. I suspect the article would tell us if Miller literally kidnapped the girl in 2003, went into hiding, and thus prevented Jenkins from parenting for the last 5+ years."I think the underlying thing is the fact that they are a lesbian couple doesn't mean that the court's going to treat this any differently than if they were a heterosexual couple," she said.
The lives of children are more important than the political agenda of pretending the pairing of two women is no different than the pairing of a man and a woman.
This is yet another example of one reason why my advice to my fellow men is to never, ever donate sperm. That girl, by court order (and the mistakes of her mother), is going to be prevented from having a father.
By the way, I would be against awarding custody to Jenkins of Jenkins was the biological father, too. The child has been raised by Miller.
ReplyDeleteMiller's brother has become active in the life of the child. The child's father pre-emptively relinquished parental status when he 'donated' his gametes. Note that SSMers usually dispute the opposite-sexed nature of fertility by claiming that an individual woman can become pregnate without a man. Obviously that's false, however, their stand depends on treating the woman as a lone individual rather than as a participant in a two-sexed duo. So to follow that line of thinking, Miller was impregnated as a lone individual. The othere woman, Jenkins, was not a participant in the conception and procreation that Miller undertook as an individual. Apparently Civil Union status overlays and over-rides that line of thinking, however.
ReplyDeleteBefore she met Jenkins, Miller had been married and then divorced. She and Jenkins met and lived in Virginia. They crossed state lines to do in Vermont what they could not do in their homestate: do civil union.
The IVF procedure occured in August 2001 and the child was born in the spring of 2002. The two women relocated to Vermont in August 2002. They split up a year later, in September 2003. The child was in the same-sex household for about one-and-one-half years.
Jenkins had a relationship with the child through her adult relationship with the child's mother, Miller. There was no adoption. There was, and remains, no biological connection between the child and Jenkins.
However, the Vermont judiciary (including the high court that imposed Civil Union on the state of Vermont) imposed an adult-child relationship between Jenkins and the child on the grounds that the two women had entered a Civil Union. This is not about de facto parental status where a social basis establishes the adult-child relationship with a non-parent. The judiciary chose to treat Civil Union as entailing the presumption that the husband is the father of children born to his wife during their relationship. In other words, the second woman, a nonbiological and not a de facto parent, would be deemed the presumptive second parent in a nonmarital arrangement.
Civil Union in Vermont was imposed on the basis of identity politics and not on a sexual basis that is comparable to the sexual basis of the marital presumption of paternity. Indeed the imposition was in counterpoint to the sexual basis of marriage. So the Vermont judiciary had freed itself from the usual constraints of family law regarding parental status. It freed itself to impose a nonsexual presumption of paternity without relying on the criteria for de facto parental status.
Simply put: the second woman was presumed the second mother of the child because the two women had a license to civil union. The license and nothing else forms the basis for over-riding the actual parental responsiblity and duty of Miller, the child's parent in all ways.
From there the rest of the list of absurdities has followed.
For example, Jenkins' lawyers argued that the religious beliefs of Miller were antiquated and a danger to the well-being of the child (i.e. a problem for Jenkins' relationship with Miller's daughter). Miller is an ex-gay -- she rejects the gay identity for herself.
But it is gay identity politics that provided the basis of the Vermont judiciary's imposition of Civil Union. The supremacy of identity politics will be asserted to the absurd conclusions that follow the logic of SSM argumentation. The judiciary will continue to be pressed into service of this assertion -- as policymaker rather than within the restraints of judicial review.
When a wife undertakes third party procreaton via IVF -- ie. through a fertility clinic utilizing 'donated' sperm -- the husband's express agreement is required. That is so ethically for the clinic (and the wife) but also for the exemption carved out to the marital presumption of paternity. If the marriage remains intact, and the husband has not expressly agreed to parental status, he can still be deemed a de facto parent. That may or may not entail all the obligations and rights of a father. If the marriage dissolves, the case weakens considerably for holding the husband to be the child's father.
ReplyDeleteWhat this civil union case does, however, is remove the intentions of the second women, and the intentions of the mother, and replaces both with the license to civil union. Neither woman was required to expressly agree that the second woman would be the presumptive 'father'. If the mother objected to such a presumption, there is no avenue to rebut -- unlike the marital presumption of paternity. Likewise if the second woman objected.
This leaves the door wide open for 1) forcing an adult-child relationship against the wishes of the mother and 2) forcing an adoption on the second woman. That goes against the legal norm. It makes normative something that stands against the marital presumption of paternity.
Another example, courts are reluctant to impose on intact marriages by entertaining a challenge to the husband's paternity by someone outside of the husband-wife duo. Usually the 'injured' party seeks to rebut the marital presumption. But none of that can apply to civil union.
So the judiciary has injected and manufactured conflicts with the marital presumption of paternity. If the one-sexed civil union and the two-sexed conjugal union are to be treated as the same in all ways before the law, then, something has to go. And it appears that in Vermont the marital presumption of paternity -- its sexual basis and raison d'etre -- is well on its way to being abolished.
That did not take very long, did it? Less than a decade.
Chairm has stated it correctly. What a breath of fresh air, given the oft-repeated misstatements about this case in the blogosphere and MSM. Thank you.
ReplyDeleteI wrote about this a while back on the case here on Opine.
ReplyDeleteThe result is horrible, but the aplpication is right.
What if this woman was married to a man, but they choose to used a sperm donor? She then left and renounced sperm/egg donoation as unethical? Would the courts deny the ex-husband or even an ex-boyfriend who happen to wanted to play daddy at the time on implantation of the embryo?
At least in typical custody battles, it is about biology in which the man and woman are no longer cooperating as one family unit. We know biological fathers and mothers are important factors in our childhood development, good or bad, even acknowledged if it is better that they are not our part of lives. Still acknowledged as a key factor to well-being and stability.
So anyways, application of law is unfortunately right. Legislators need to change public policy to protect our individual rights when we are children. Our attitude though to children is to see them as wants, consumer products, they are not inherently seen as human beings. They get tossed around, it's no wonder why so many individuals who were born in the perfectly planned/wanted concept have our own troubles and are so hestitant towards family.
Renee, I see this as a problem with civil union law, or neutered marriage law - or any law that igores the difference between a mother and father to a child.
ReplyDeleteLike I said above, if Jenkins was male, I'd still say that Miller should retain custody, unless shown to be an unfit mother. However, if Jenkins were male, at least Jenking could be a *father* to the girl. The girl already has a mother. Why take her from one mother to give her to another "mother"?
I also want to state that I generally do not support one parent moving away from the other parent in a way that deprives the children regular access to both. (Generally - I'm not talking about moving away from an abuser.) But that usually means depriving a child of his or her father, or, less often, his or her mother. In moving away, Miller did not deprive her daughter of her father nor did she deprive her child of having a mother.
Renee asked:
ReplyDeleteWhat if this woman was married to a man, but they choose to used a sperm donor? She then left and renounced sperm/egg donoation as unethical? Would the courts deny the ex-husband or even an ex-boyfriend who happen to wanted to play daddy at the time on implantation of the embryo?
These are good questions and we can't know the answers given that activist courts have become the predominant policymakers.
When legislatures defer to judges, and even deliberately procrastinate to grant judges the lead, the concerns of regular folks -- like those of yourself and Playful Walrus -- are not given a good hearing. So we play catch-up to a runaway train.
After pondering your questions here are my additional thoughts:
If married, the husband provides his express agreement with the impregnation of his wife with the sperm of another man. If he withholds his agreement, neither the clinic nor the wife is on firm ethical ground to proceed with producing a child under the special exception to the marital presumption of paternity.
In contrast, if, as your question posed, the wife renounced this use of IVF and dissolved their marriage after becoming pregnant, the husband is still obligated because she became pregnant during their marriage and with his express agreement for IVF.
Intentionality is deemed highly important precisely because this is an exception to the sexual basis for the criteria to rebut the marital presumption of paternity. In effect, the husband and wife agree to remove the biological basis for rebuttal. That's why express agreement is a pre-requisite.
His intention to be presumed the father might be implied subsequently if the child is held out as the issue of their marriage. This moves the criteria away from the sexual basis and into the area of de facto parent. Sometimes the de facto criteria over-ride even purposeful measures taken by the husband to NOT hold the child out as his.
Of course, the societal interest in providing the child both a mom and a dad plays into this; as does the societal interest in protecting their marriage -- and protecting the social institution. There is a trade-off here -- intentionality is not a trump card in all cases.
That is, the default position is that the wife is not a lone individual using the clinic's services. And if the couple raises the child together, the default position becomes that the child has both a mom and a dad through the lifetime commitment expressed in marriage and in the mutual agreement regarding IVF.
Obviously, much of this accomodation arises from the use of IVF by married couples -- 90% of whom do not use 'donated' sperm, ova, or embryos.
(Interestingly, embryos are sometimes treated as cases of adoption anyway, as with regular adoption by married couples where mutual agreement is necessary. No husband adopts as an individual; nor does a wife. The use of 'donated' gametes is a sort of extension of adoption, in a way, but under the adapted guise of presumed paternity.)
continued ...
The civil union basis for a presumption of maternity is arbitrary because it is removed from the sexual basis of the marital presumption. There is no one-sexed sexual basis for a presumption of double-maternity. Two women in a civil union might not even touch each other or they might engage in same-sex sexual behavior; either way is irrelevant.
ReplyDeleteThis double maternity decision is arbitrarily based on civil union status alone.
It does not entail the de facto criteria. No express agreement is required in the law because the sexual basis for the presumption of paternity can not apply. It is not like marriage in this vital way. There is no sexual basis for rebuttal. So the ethical basis for the husband-wife duo does not translate neatly to the two women scenario.
The legal presumption is that no matter how long the women are together -- briefly or for years -- and no matter what they did or did not do sexually -- their civil union status is decisive without criteria for rebuttal.
It raises the obvious question: what if one woman was impregnated through sexual affair? Not an unlikely possibility considering that the example that prompted this discussion is about the breakup of a civil union.
In such a scenario, can the mother or the second woman challenge the presumption that the other woman is another mother? Is the civil union put aside to allow an outsider to press his superseding right to establish his paternity? What if there are more than one man who had opportunity to impregnate the mother? What if the civil union is not dissolved -- does the father have no standing because of a societal interst in protecting the civil union?
Does it lead to tripartite parental status whereby both women and the man are accorded co-equal parental obligations and duties?
And what if the mother marries a different man who raises the child to adulthood -- does this open the door to four co-equal parents based on vastly different and conflicting criteria?
continued ...
Civil union stems from the pro-SSM argumentation whereby the individual woman is entitled to be treated as a one-sexed procreator (at least that is the idea that is often asserted). The second woman is an additional adult caregiver. So if one woman uses IVF, it technically does not matter if there is mutual agreement expressly made. Yet the two women are bound by civil union status with this new presumption of double maternity that is based solely on civil union. A presumption without criteria for rebuttal. A lifetime presumption that is not based on intentionality.
ReplyDeleteWith marriage, the couple give their intentions freely when they say, I do, and undertake the contingency for responsible procreation. But if they use third party procreation, via a clinic, then, express agreement is required to sustain the exception to the sexual basis for rebutal of the marital presumption of paternity. If third party procration occured through a sexual affair, then, the criteria for rebutal are available to the husband -- and to the wife's partner in infidelity -- should the marriage dissolve.
The grey areas exist where the child has been raised by the husband. This is where de facto criteria come in AFTER the sexual basis for paternity has been rebutted. The husband and wife could agree to discretely leave paternity unchallenged and most courts would not allow an outsider to intervene even if the marriage dissolved. However, if the other man came into the scene and could make a strong case that the court should at least consider his challenge to the presumption, then, one man will be deemed the child's father with full parental status. Not two.
I think there are all kinds of insiduous ways in which this civil union presumption of maternity will undermine the solidarity of fatherhood and motherhood via marriage. It won't stop with civil union nor with same-sex scenarios.
If a woman is a lone procreator, why assume the female civil union partner is a parent? Indeed, if civil union and marriage are the same thing, then, why not treat the wife as a lone procreator? Why use a sexual basis for marriage but not for civil union, for that matter? Plus, if sexual orientation is the basis for civil union -- or for the SSM merger -- what's that got to do with IVF anyway?
I think it would lead to increased sex-segregation, increased disunity of fatherhood and motherhood, and a field day for exceptions piled upon exceptions until the exceptions become the general rule. In other words, incoherency will outstrip any rational attempt to codify this into statutory law.
The analogy with the unintended consequences of no-fault divorce is close and strong, I think, so we might as well brace ourselves.