Miller-Jenkins update...and musings on going underground to avoid court-ordered visitation

Today's New York Times brings another story about the longrunning conflict over the custody of Isabella Miller-Jenkins, something I have covered extensively in numerous blog posts.  Lisa Miller remains in Nicaragua with Isabella, now 10, having fled there with the help of various fundamentalists to avoid allowing Isabella's other mom, Janet Jenkins, to exercise court-ordered visitation with the child.  From Lisa's perspective as an evangelical Christian, she is doing God's will.  One of her lawyers is quoted in the article as blaming a "misguided legal system" and saying that the court "overstepped its bounds" turning the child over to a person who "lives contrary to biblical truths."

Lisa Miller's actions were (and are) wrong, but I don't want to associate myself with a view point that a parent should never disobey a court order for visitation or custody.  As a lawyer, I could not advise a client to disregard such an order, but as a feminist I cannot forget about the numerous children sexually abused by their fathers yet ordered to visit them.  Probably the most famous example of a mother who defied such an order is Elizabeth Morgan, whose parents fled to New Zealand with their granddaughter, Hillary, to avoid turning her over for unsupervised visits with her father, Eric Foretich.  Elizabeth Morgan spent more than two years in jail in the 1980's for her role in refusing to obey the court order for visitation.  The District of Columbia judge who presided over the trial found the conflicting evidence of abuse "in equipoise."  In other words, he found Morgan could not prove it was more likely than not that the abuse occurred, even though there was plenty of evidence that it did.  There has been an underground railroad of sorts for at least three decades, as women have fled with their children to avoid such court orders.

But here is why I make a distinction between such mothers and Lisa Miller.  When a mother believes her child is a victim of abuse, but a court does not believe her and orders unsupervised visitation, there is a dispute over the facts. In that context, I fear that judges are loathe to believe a father would commit a sexual assualt on his own child.  That leads them to disregard or underweigh evidence.  I remember once when I was in private practice in the late 70's advising a woman whose husband masturbated with their two year old daughter in bed with him.  He never touched the child.  I cringed at the knowledge that the mother would have a hard time proving such an allegation in court.  A judge might even believe she was lying to get an advantage in a custody fight and therefore award custody to the father.  I understand the instinct to protect a child from abuse even if it means going underground, even though I would not participate in such a scheme or advise a mother to do it. When I read about such instances (which still occur) I cut the mother a little slack in my mind because I do not trust all judges to get the facts rights.

But in the Miller-Jenkins case there is no factual dispute.  We aren't dealing with a judge whose assessment of the evidence might be skewed by a resolute unwillingness to believe such things as sexual assault happen between a father and child.  We're dealing with a judge who made a reasonable visitation order for a noncustodial parent which was flaunted by the custodial parent only because she did not want her child around a lesbian.  Lisa Miller clearly believes she made a mistake forming a family with Janet Jenkins, but lots of mothers regret the partners they had children with.  That history cannot be rewritten, however.  Noncustodial parents gets visitation rights, even when there is profound religious disagreement between them -- something that is not at all uncommon as any student of family law knows.  Lisa and the evangelicals supporting her don't believe Janet is a parent, but parentage is determined as a legal matter.  And the court got it right when it ruled that the couple's joint decision to have a child through donor insemination, and all the other factors, made them both parents.

It's really that legal ruling that Lisa and her supporters disagree with.  And for that I cut them no slack. "Biblical truths" (themselves, of course, open to interpretation as the religious leaders who support lesbian and gay families have demonstrated) don't determine legal parentage.  And we would have a very different country if no parent who lived contrary to "biblical truths," as determined by evangelical Christians, could visit with his or her child.

To be clear, had Janet Jenkins lost I would have also counseled her against kidnapping her child.  To my knowledge there has never been a lawyer for a nonbio mom who has advised such a course of action.  It may be a tragedy for a child to lose a parent in such a way, but the answer is changing the law.  The casualities along the way are sad, but still unfortunately unavoidable.  And when the child turns 18, there is always the possibility of trying to resume the parent-child relationship severed by court order.

I feel sorry for Isabella, whose life in Nicaragua does not sound happy.  And I am furious at Lisa Miller, who put Isabella in this situation.  Lisa didn't act in Isabella's best interests.  Elizabeth Morgan's daughter, now 26 and a singer who goes by the name Elena Mitrano, thinks her mother did the right thing. She spoke up about her life in this 2009 article.  Someday Isabella will have her say as well.