Timo Miller website raising funds for defense of man who helped Lisa Miller evade court order to transfer custody

Timo Miller, the Christian missionary and Mennonite pastor arrested last month (details here)for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller, has set up a website telling his side of the story and seeking funds for his defense.

A Vermont court ordered a change of custody after Lisa repeatedly defied the court orders providing for visitation between Isabella and her other parent, Janet Jenkins. After the last hearing in the case, but before the court issued its ruling, Lisa fled the country, allegedly with Timo Miller's help. She and Isabella remain in Nicaragua.

The Timo Miller website compares Lisa to a mother goose who will "fight to the death to protect her young." It describes same-sex couples raising children as follows:

Since God has not intended for two men or two women to raise children as a family unit, they can’t produce children on their own. This creates a problem in their agenda to create the perception that homosexual behavior is normal. Thus they resort to adopting children or using artificial insemination from a male donor in the case of a lesbian relationship. Can you imagine being a child growing up in the middle of such an environment?

According to the version of events on the website, Lisa "realized the emptiness of her lesbian lifestyle" and "the danger that lifestyle posed for her young daughter." So she "repented of her immoral ways" and sought to make a new life. "Unfortunately for little Isabella," the website continues, "the lesbian activists decided the situation was an opportunity to further their agenda. They filed lawsuits on behalf of Janet Jenkins (the former lesbian partner) to force visitation rights and eventually gain custody of Isabella in an attempt to prove that their “civil unions” have parental rights."

One of the many things wrong with this version is that Lisa herself filed to dissolve the couple's civil union and requested custody, with visitation rights to Janet. The website describes Lisa's losses in the Virginia appellate courts as those courts "wash[ing] their hands of the situation because of some legal technicalities." Those "technicalities" are the laws explicitly designed to prevent parental kidnapping by giving control over custody litigation to the state that issues the initial court orders. When Lisa filed in Vermont, she gave that court the power to decide Isabella's custody and visitation. That's not a "technicality."

The website puts references to Janet's parental rights in quotes (i.e., "parental") and then says the accusations against Timo Miller beg the question of how "a biologically unrelated individual who has not gone through the adoption process" can even have parental rights. "Most states have specific prohibitions banning homosexual marriage," it continues, "helping to prevent a situation like this from occurring." If this turns out to be his defense, it will get him nowhere. In numerous situations, legal parentage does not require biology or adoption. And laws banning access to marriage for same-sex couples have never been interpreted to prohibit parenting by same-sex couples. (Some states do not allow both partners to be legal parents of their children -- see my recent post about Arizona for an example -- but that's entirely separate from whether they can marry.)

The case summary page on the website concludes: "Will you stand beside Timo as he faces the accusations against him? Will you pray for him and his family? Has God blessed you with the ability to help financially?"

Miller won't be able to build a defense around his religious convictions, but it looks like that's what her's going to try.

FBI arrests Timothy David Miller for aiding in the international kidnapping of Isabella Miller-Jenkins

The FBI has arrested Timothy David Miller for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller. (For background on the long-running litigation between Lisa, who became an evangelical Christian, and her former civil union partner, Janet Jenkins, declared Isabella's parent by the courts in Vermont, click here and scroll down to earlier posts). Lisa and Isabella appear to be in Nicaragua.

Gay and Lesbian Advocates and Defenders (GLAD), which has represented Janet Jenkins in the Vermont Supreme Court proceedings in this case, released a statement this morning.

A criminal complaint against Lisa Miller for international kidnapping was lodged on April 27, 2010, after the FBI learned that Lisa had crossed into Canada via the Rainbow Bridge at Buffalo, NY, with another passenger, thought to be a minor, on September 22, 2009. Just to put that date in context, Lisa failed to comply with numerous court orders awarding Janet visitation with Isabella. She did not appear at a Vermont hearing on August 21, 2009, concerning Janet's motion for custody of Isabella. The court ruled on November 20, 2009, that Lisa should surrender custody of Isabella to Janet on January 1, 2010. It is now clear Lisa and Isabella left the country after the hearing and before the court's ruling. Lisa's lawyers unsuccessfully appealed the transfer of custody and unsuccessfully sought review by the US Supreme Court.

The affidavit in support of the criminal complaint against Timothy Miller (no relationship to Lisa Miller has been established), which was issued on April 1, 2011, reveals that the FBI determined that Lisa and Isabella flew from Toronto to Managua, Nicaragua (via Mexico City and San Salvador) on September 22-23, 2009. Search warrants for Timothy Miller's email and phone records revealed that he is associated with Christian Aid Ministries (CAM) in Managua, and that he was involved in planning for Lisa to "escape" to Nicaragua, including approving the travel itinerary for Lisa and Isabella. The airfare was paid by a credit card in the name of Elaine and Jesse Cooper. The affidavit says that Elaine Cooper is the mother of Joanna Miller, Timothy's wife.

Lisa Miller was represented by Liberty Counsel, specifically Rena Lindevaldsen. Although Liberty Counsel lawyers informed the Vermont court that they did not know where their client was, the FBI affidavit establishes a connection between Liberty School of Law, where Lindevaldsen teaches, and Lisa Miller's presence in Nicaragua. The father of Victoria Hyden, an administrative assistant at Liberty School of Law, owns a home in Nicaragua. His name is Philip Zodhiates and he is connected to an entity that describes itself as a source of mailing lists for conservative and Chirstian mailers and telemarketers. One of Janet Jenkins's lawyers notified the FBI of a telephone call in June 2010 reporting that Zodhiates had asked Hyden to disseminate a request for supplies for Lisa.

Timothy Miller's emails contained a strand of communication between Zodhiates and another man named John Collmus concerning delivery of personal belongings for "Sarah" (believed by the FBI to be the code name for Lisa Miller) to Nicaragua. The emails said that Timothy Miller would meet Collmus at the airport in Managua and identified "Sarah" as working with Christian Aid Ministries in Managua.

You can read the criminal complaints and affidavits against both Timothy Miller and Lisa Miller here. Timothy Miller will be arraigned in Vermont on Monday.

The FBI has done a great job so far. I hope it continues to investigate any involvement of Liberty Counsel, anyone associated with Lisa's lawyers, and any other connections to right-wing Evangelical organizations. It's hard to take the moral high ground while actively disobeying the rule of law, and certainly any lawyer who aided -- or asked others to aid -- Lisa Miller in any way should face severe professional sanctions as well as criminal prosecution.

Supreme Court -again- turns back Lisa Miller

Just a couple of weeks ago, the Vermont Supreme Court upheld a trial court's ruling that custody of Isabella Miller-Jenkins should be transfered to her nonbio mom Janet Jenkins. Isabella is, of course, the child at the center of the longest running dispute between lesbian ex-partners over custody of the child they planned for and raised together. Bio mom Lisa Miller has lost in the courts of Vermont and Virginia on multiple occasions, and is now living in hiding with the child.

Well this week Miller got one more rebuff, this time from the US Supreme Court, which refused to hear the most recent ruling from the Virginia courts requiring enforcement of the Vermont court orders. I wrote about the latest Virginia ruling here. It's not surprising the Supreme Court isn't hearing the case. It hears very few cases, and the legal issue concerning recognition of child custody rulings properly granted in other states is settled law. It's not surprising either that Liberty Counsel, who represents Lisa in both Vermont and Virginia, keeps asserting legally untenable positions. And with Isabella underground, all these rulings are just so many pieces of paper.

Vermont Supreme Court agains rules in Janet Jenkins' favor

In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.

The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:

We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.

Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.

The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."

At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.

Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.

The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.

I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.

I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.

I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.

But my heart still goes out to Isabella.

Virginia appeals court agains sides with nonbio mom and against Liberty Counsel

At this point the Miller-Jenkins custody dispute is the most heavily publicized and longest running case over custody of a child born of donor insemination to a lesbian couple. I summarized much of the history in a previous post.

Last week the mainstream press covered the Vermont court's issuance of an arrest warrant for Lisa Miller, who has disappeared rather than adhere to any of the court orders granting Janet Jenkins first, visitation, and then, custody, of their daughter, Isabella. But there was another important ruling in the case last week, this time from the Virginia Court of Appeals. That court rebuffed Lisa's most recent attempt, orchestrated by her lawyers at the right-wing Liberty Counsel, to argue that Virginia should not enforce the orders of the Vermont court.

The legal principle in this latest appellate court ruling has nothing to do with lesbian mothers and everything to do with garden variety civil procedure doctrine. For obvious efficiency reasons, litigants are not able to re-raise issues they have previously litigated in the same case. It's called the "law of the case" doctrine.

In Miller's latest effort to thwart the court orders, she argued that even though the Virginia Supreme Court in 2008 ruled that Virginia must register the orders of the Vermont court, that did not mean that Virginia had to enforce those orders. Last week's ruling from the Virginia Court of Appeals affirmed a Virginia trial judge's ruling that the Vermont orders must be enforced.

The court noted that from the beginning of her litigation in Virginia, Lisa has asked that the Vermont orders in the case not be enforced. The Virginia Supreme Court has twice heard appeals in this case, and the rulings it has made govern any future litigation between the parties. In other words, there's nothing new to argue; the Virginia courts have heard it all. Lisa's attempt to parse registration and enforcement is not a new issue, but a re-hashing of the exact same issues she has been arguing for years. She has lost before and she has just lost again.

The most important question at the moment is where Lisa is hiding with Isabella. But I've got another question, triggered by some basic principles of civil litigation that I teach my first year law students. When will a Virginia court censure, and maybe even fine, Liberty Counsel for making frivilous legal arguments?

Vermont judge orders transfer of custody to non-bio mom of Isabella Miller-Jenkins

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.