Ruling in Vermont Same-Sex Child Custody Case: Lesbian Moms, Divorced Dads in Same Boat

In a highly-publicized new decision, a Virginia appeals court ruled Tuesday in favor of a lesbian social/non-biological mother in her custody battle against her child’s biological mother. The former couple, Lisa Miller and Janet Jenkins, joined in a same-sex civil union in Vermont in 2000 and had a child together in 2002. After their breakup, Miller, the biological mother, moved to Virginia with their daughter Isabella, won sole custody, and excluded Jenkins from the girl’s life.

Opponents of gay marriage, gay activists and the media have focused almost exclusively on the new decision’s impact on same-sex marriage. Lost in this, however, is the fact that the case is a textbook example of one of America’s greatest social problems–the refusal of many divorcing mothers to allow their children to continue to have a relationship with their former spouses.

During Jenkins’ and Miller’s same sex-union Jenkins did everything she could do to be a good parent to their child. She was involved with the pregnancy from the beginning, was present in the delivery room, worked to support the family, and played an important role in Isabella’s life. Following their breakup she was granted visitation rights but Miller refused to comply. After Tuesday’s ruling, Miller’s side vowed to further appeal the case to deny Jenkins access to the girl. Miller says she does not want Jenkins to have any visitation rights, and has not allowed her to see their daughter since 2004.

Increasingly, other lesbian social mothers are suffering similar injustices. For example, in the A.H. v. M.P. case currently before the Massachusetts Supreme Judicial Court, the trial court ruled against A.H., a lesbian social mother, who had been the primary breadwinner for her partner M.P. and their young son. After separation M.P. sought to minimize A.H.’s role in the boy’s life, arguing that since A.H. was not the child’s primary caregiver, she should not receive joint custody of the boy.

The heartache Jenkins and A.H. feel is very familiar to many divorced or separated fathers. According to the Children’s Rights Council, a Washington, DC-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.

In a study published in the American Journal of Orthopsychiatry, 40% of divorced mothers admitted that they had interfered with their ex-husband’s access or visitation, and that their motives were punitive in nature and not due to safety considerations. A study of adult children of divorce conducted by Glynnis Walker, author of Solomon’s Children: Exploding the Myths of Divorce, found that 42% of children who lived solely with their mothers reported that their mothers had tried to prevent them from seeing their fathers after the divorce. According to research conducted by Joan Berlin Kelly, Ph.D., author of Surviving the Break-up, 50% of divorced mothers claim to "see no value in the father’s continued contact with his children after a divorce."

What’s needed for both lesbian social mothers and biological fathers is 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. The fitness requirement excludes parents who have been physically abusive, who abuse drugs or alcohol, or who have significant mental disorders.

These presumptions do exist in some states, but they are generally weak and too easily evaded. Misguided women’s groups such as the National Organization for Women vociferously oppose such presumptions. This year NOW successfully rallied its forces to oppose shared custody legislation in Michigan and New York.

The problems heterosexual mothers create for their children and their ex-partners have been largely ignored, partly due to misleading stereotypes of abusive and/or "deadbeat" fathers. Today fit, loving, lesbian social mothers like Jenkins and A.H. and their children face similar mistreatment. Ladies, welcome to the club.