Natural Mother Ordered to Surrrender Daughter in Custody Conundrum

Continuing our discussion of the ethical and practical issues surrounding children born in our new modern world of questionable conception practices, there's more today: A judge in Vermont recently (11/20/09) ordered that the biological mother of a sperm-donor child must transfer custody of the child to her former lesbian partner...with whom the child has no genetic connection. The child in question is a seven-year-old girl, who has been living solely with Lisa Miller, her mother--birth/biological/natural/whatever--ever since the couple broke up when the girl, Isabella, was 17-months old. Read about it at both The New York Times and once again, The Huffington Post.

Miller and her former partner, Janet Jenkins, were married in a civil ceremony in Vermont in 2000, and Isabella was born to Miller through artificial insemination in 2002. The following year the couple broke up, Miller moved to Virginia, renounced homosexuality, and became an evangelical Christian. When William D. Cohen, the family court judge in Vermont, dissolved the union in 2007, he awarded custody of Isabella to her mother, but granted Jenkins liberal visitation rights. All well and good. His reasoning was that the case was the same as a custody dispute between a heterosexual couple. Both the supreme courts of Vermont and Virginia agreed with the judge and the U.S. Supreme Court declined to hear the case.

But because Miller has denied visitation to Jenkins, Cohen found Miller in contempt of court last month and reversed custody to Jenkins. Miller asked for a delay of transfer of custody, but was denied on December 22. Then Miller disappeared with Isabella. "It appears that Ms. Miller has ceased contact with her attorneys and disappeared with the minor child," Cohen wrote in his decision, adding that the only way to allow both parents to have access to the child was to award custody to Jenkins, not her mother. Miller's phone line has been disconnected, and she has not been in contact with her attorney, Mathew D. Staver.

Well, what a fine mess this is, another example of the murky ethical and emotional issues surrounding all these newfangled forms of conception and arrangements.

I have no issue with the original court decision. If the child were adopted, and had no biological connection to the father, yet he wanted visitation, he surely would be granted it, as well he should be. Acquaintances of mine went through the kind of breakup and custody arrangement with a child adopted from China; and the father is indeed a good father to his daughter and remained a vital part of her life. I spent part of Christmas Day with the mother; the daughter, a bright, vivacious teenager now in junior high, sat next to me at dinner and we briefly spoke of her Christmas holiday and how she spent time with both parents this year.

But this decision breaks my heart. Though I am speculating here, I can envision a scenario where the biological mother with her new-found religion that eschews homosexuality finds it particularly abhorrent to let her daughter visit her former partner, who probably continues her life as a homosexual. What to do? She decides to cut off her former partner, probably with the encouragement of fellow church-members, and so the judge says, OK, Mom, you lose, you lose big time. In fact, everybody loses. We needed a judge with the wisdom of Solomon (but no one is going to order cutting the child in half), and a natural mother with the generosity of the real mother in the Bible who hands over her son to the other mother before he is indeed sliced up.

Save that, maybe Judge Cohen could have threatened mother Miller with jail time (and made good on that threat) if she did not allow Jenkins visitation. The girl has not been with Jenkins since she was 17 months old, but has visited Jenkins in the past, who has done her best to maintain a relationship she clearly wants with the girl. Isabella is now seven, and surely beginning to show some signs of what she wants to do, whom she wants to be with, though of course throughout all this Miller has probably poisoned her against Jenkins. That's also something I'm familiar with.

I'm sorry that Miller has gone underground with her daughter. These situations never have good endings, and mostly likely increase Miller's chances of losing her daughter when she surfaces, and such people usually do. I'm sorry that Miller did not allow Jenkins the visitation the court awarded her. I'm even more sorry that the judge awarded custody of Isabella to a genetic stranger. It's a *@$#ed up world, and the children are the ones who pay the dues. Comments at the HuffPo are, once again, lively, both pro and con the judge's decision. For a thorough discussion of the story, see a 2008 Newsweek story.
__________________________
On another screwy note, the Brazilian family of the nine-year-old boy who was finally returned to his American father are continuing their legal battle to regain custody. Can you believe this? After a five-year-fight the father, David Goldman, regained physical custody of his son, Sean, on Christmas Eve. The Brazilian grandmother of the boy wants the boy to make his wishes known in court, and while it's very very unlikely that this will come to pass, the Brazilian Supreme Court has yet to issue a final ruling on this matter. They will not convene again until February. I gotta say, is she nuts?

Before Mr. Goldman, of Tinton Falls, New Jersey brought his son back  to the U.S. on Christmas Eve, everyone from Hillary Clinton to Goldman's Congressman got involved. This was a case that attracted international attention and everyone generally agreed the real father's rights were paramount. We could not but help think how once we first/birth mothers sign surrender papers, no matter the circumstances, society basically tells us we should drop off the face of the earth and does not consider the very real emotional ties we have to the children we nourished for nine months in our bodies, children who carry our DNA. Yet everyone knows that it is not so simple as dropping a child in a field and walking away....

To anyone reading this who has been living otherwise under a rock: Goldman was married to a Brazilian woman; Goldman thought all was well and good when she took the boy for a two-week vacation to Brazil to visit her family and the boy's grandmother, but instead of returning she got a divorce, later remarried , and died in childbirth. The step-father (a prominent divorce/custody attorney in Rio) insisted on keeping the boy despite Goldman's pleas to have his son returned to him. Thus began an international legal battle. Goldman says that he is willing to have the boy's grandmother, Silvana Bianchi, be a part of his life. I would suggest he NOT go on visits back to Brazil.--lorraine

Jane here: I just want to say kudos to the Brazilian court for honoring blood ties even though the father has not seen his son in many years. Too often in the US courts minimize or ignore these ties. In protracted custody cases between blood relatives and adoptive or step parents, the courts often apply a kind of squatters rights doctrine ("the best interests of the child" or "the psychological parent") to give custody to the interlopers, ignoring the unbreakable bond that connect children to their natural parents.