' [Birth Mother] First Mother Forum: Natural Mother Ordered to Surrrender Daughter in Custody Conundrum

Wednesday, December 30, 2009

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.


  1. Mother Miller was frightened into taking off with her daughter. I hope they establish a new life elsewhere and don't get found ever. The judge in this case drew a line in the sand instead of taking steps towards mediation. Why was this decision so much about punishing the natural mother which in turn punishes the daughter also? Makes me wonder what chip on the shoulder this judge has.

  2. While I am not a proponent of one kind of life style over another, I can say this. When you make a choice to an unusual life style (and there are a number of them) you make the choice to face the consequences that come with that life style.

    I have a very young friend whom has entered into a lesbian/non-lesbian marriage-relationship. Then, without thought to the consequences and her own background, she has entered into adult baby lifestyle & Dom/sub lifestyles, the first simply boring the couple (she is still with her partner) out of it, the second they were scared out because of a, shall we say, lifethreatening problem that was not theirs but their friend's problem.

    The latest is the polig lifestyle. All through these changes, my friends oldest child has been witness to some of the non-sexual aspects, but has been the child of TWO parents. Prior to the latest change, another child was born to my friend, through donor sperm. And now there is not only one non-biological parent, but three.

    I try very hard to be supportive, but the truth is, I am not. I don't think that making a choice to bring strangers into a child's life, strangers that can ultimately lay claim to them, depending on the length of time of the relationship, over the rights of their mother, is and intelligent well thought out choice.

    Of course, with my friend I stay silent on that. I can't make her see her foolishness.

    But all of this makes me wonder if there is not an argument for only biological parents having any rights to a child and then only if they are not anonymous (with expectations of anonymity prior to donation) donors.

    Children are people. They are not toys, objects of art, new cars, a tea set that you just must have, but PEOPLE. Unique, special individuals that we, as adults and parents should see as the reason for our being, not as a reward for our being.

    How very sad.

  3. To me, both this case and the previous one of the child returned from Brazil are all about divorce custody and do not have anything to do with adoption. If the lesbians were a female mother and male stepfather who had been in the child's life when she was born, it would still be a sad case with the kid in the middle, but I do not see the automatic siding with the biological parent in all these kinds of cases.Life is not that neat and tidy, and being biologically related does not always make for the better or more caring parent.

    I would not venture to say what should or should not have happened in either case, as I do not have all the facts and in fact it is none of my business or concern.

  4. Being gay is not a lifestyle.

  5. maryanne, while I think you have a point, it is about divorce, you are also missing the point.

    These kinds of battles are part and parcel with the battle to uphold a mothers right to nurture and raise her own chldren.

    Sadly, and frequently, I see your passivity as one of the problems, not one of the solutions.

    The fact that the biological parent in any case is not supported simply because they are not doing what someone else wants - i.e., suddenly mom is not a lesbian and is religious so she does not want her child exposed to this lifestyle and now she is either going to have to expose her or lose her forever - hmmmmm. Shades of a new way to claim a child for adoption or better yet, to justify non-biological parenting as an norm in a muc bigger way.

    People reacte from a very viceral place. Depending on how religious, what kind of religion, the biases of the religion, the individual can suffer greatly under the beliefs of that religion. This can be both positive and negative, depending on point of view.

    What comes to my mind is that the ex-wife did not attempt to force the issue until much later and the child has never really known her, has no genetic ties to her. Does this mean that it was about the child? Or is it because the mother remarried to a man? Jealousy is not just a hetrosexual issue.

    This is what it is about. The idea that anyone can put anything before the needs, the true needs of a child. A child does not need a lot of things, but a parent that is part of their genetic history is important. Genetic history includes things like basic behaviors, reactive thinking, cognitive functioning levels, etc.

    A good example - my daughter comes from a family of above average intelligence - she was adopted by average to below average intelligent people. She is now trapped in the limbo of what she could be and what she is. She was never encouraged to use the intelligence she has, even as an adult in a way that is more productive to her. In other words, she was informed that she was too stupid for anything but waiting tables and having babies - and now, it is hard for her to believe that she really is much more intelligent, even though (no one get their knickers in a knot) she has trouble being around ignorant people.

    All this being said, at what point to we face that all cases that involve removing a child from their natural parent is a case we need to be aware of? Something that is indeed our business?

    Sigh...I am almost ready to just give up on all of it...what a waste of truly intelligent people.

  6. Lori, your comment are spot on, however these issues do arise in divorce as well.

    The repro tech stuff and surrogacy is not going to go away - just get worse. Check out:


  7. AdoptAuthor, how very sad. We spend millions a year doing nothing about the hideous practice of allowing people that should never be parents to parent children.

    Worse, we all sit around whining about rotten the kids are today.

    Sigh......When are we, the mothers - real mothers (by the way that includes adoptive mothers that adopted for all the right reasons and chose children that actually needed them) going to stand up and say "ENOUGH"! It is almost as if we like being victims.

    Children belong with their biological families. If that is not possible, and not because mom is too ignorant to understand nutrition, house cleaning, poverty, etc., then guardianship should be the first choice - I don't care if the child is in a situation of two mothers (as described in the original post), surogacy, poligamy, whatever! Children don't even know that they are not physically part of their natural mother for the first approximately 9 months of their lives. If the guardianship choice is not viable, then familial adoption should be considered. At least that way the child is with someone who will understand the family behaviors (and these are darn important to a child) and accept the child for what they are. It also includes the all important blood connection - believe me that is one of the few things that keeps children from being abused or killed in larger number than they already are.

    Finally, if there is no way for a familial adoption, then outside adoption is the last choice. This too should be left open in ways more than just contact. Children's birthcertificates should not be altered. That scrawny, ignorant old woman did not give birth to my child! Believe me. She still doesn't even know how to change a diaper! And she is MY mother's age.

    Adoption is a choice. And as much as we would like to call it family planning, pregnancy is not a conscious choise for most people. I don't know about you, but I know my mother did not plan me. And it took for the 7th one of us for my father to finally make sure it never happened again!

    No, my parents weren't perfect. But my father would have hanged himself before he touched one of his daughter's sexually. Yet my foster fathers never had that inhibiton. My mother, that is a whole different can of worms. She was not a good mother. She blamed me for her poor choices. When I was young, I accepted that I was the cause of all the ills on earth. Then I grew up, and now I know that it is not my issue, but hers.

    We talk a good game, we have groups that want big bucks that very few people actually participate in - I am not interested in paying almost as much as my APA dues to get nothing out of my money.

    And adopted persons, I am about to my eyebrows with that too. I get asked all the time if I am going to march in this or that protest about rights. Me. The woman that can barely walk around her house! Yet, when I offer, I get that ho hum, well, we want more adoptees, bastards, whatever they choose to call themselves. And then get to listen to how much we owe them.

    Gee I wonder why a lot of parents retreat - who wants to be a door mat for anyone.

    I have offered and know how to get my daughter's birthcertificate. To date she has refused. I think it is because she is not ready to look back, or maybe she just believes that we have each other now, why wallow in something we can't change.

    I don't know. I do know I am sick and tired of mothers acting as if their religious, lifestyles, sexual preferences, whatever, make one bit of difference to the child. And that only adoption affects adoption.

    What narrow minds are these that refuse to open and see that each and every thing that affects children, their rights and their parents rights, ultimately affect the cause that appears to be the most important to them. ADOPTION.

  8. It makes sense that the judgment would be reversed in favor of the compliant partner. The law must apply the same standards, whether the marriage is between a man and a woman or people of the same sex.

    Being gay is not a 'choice'.

    Little Snowdrop

  9. But there is a difference. One of the parents is the biological mother of the child. This is not the same as if the couple adopted a child not genetically related to either one of them.

    What about the child's right to be raised by a person who is genetically connected to her? By what we know, her mother is not an abuser or an alcoholic. Just determined to raise her child.

    We are not arguing that being gay is a choice, nor did we ever say that.

  10. Twice being gay has been referred to as a lifestyle. A lifestyle is a choice, like polygamy. Being gay is not a choice and gay people do not follow "an unusual lifestyle".

    On the issue of custody, I agree with Maryanne. The point isn't that genetics aren't important but they don't trump everything. There are other issues here besides the right of a biological mother to raise her biological child. That is not the defining issue in a situation where two people were married a child was produced. The other partner is also this child's legal mother. And the biological mother kidnapped the child.

  11. I think we are starting from different premises so have a different take on custody cases. I do not think being raised by blood related people is a "right" or always the best thing for a child.

    When two adults are fighting over custody of a child, both have their own agenda which may or may not be best for the child. This includes blood-related kin...they have their own agenda just as the non-related parties do. That is why these cases are so difficult and complex and require great wisdom and discernment from judges.

    I am not a "family preservationist" like many who read this blog. (cue the villagers with torches and pitchforks:-) Sometimes children are better off with others than blood relatives. Sometimes not. Each case need to be considered on its own merits, and what is really best of the child, not what either competing adult says is best.

  12. "We are not arguing that being gay is a choice, nor did we ever say that.
    I know you didn't. I'm sorry. I should have been more clear.
    It was Lori who described being gay as a 'choice'.

    The child was conceived as the result of an agreement between the two parties, and in the eyes of the law they are both legal parents.
    The reversal of judgement would *not* deny access to the genetic parent.

    "By what we know, her mother is not an abuser or an alcoholic. Just determined to raise her child. "
    To the exclusion of the child's other legal parent, and in contempt of the law.

    Not to mention that she not taking responsibility for a decision made by her pre-'seeing the light' self.
    But that's just my gripe.

    Little Snowdrop

  13. I just went to check something, because I was unsure if my info was correct, but Vermont is one of the states that "grants legal parent status to partners of birth parents when a child is born during a domestic partnership or civil union."

    In some states, this is not the case and partners must complete a stepparent adoption. In those states, the partner might not be the child's legal parent.

  14. Just a little question; can everyone here honestly say that if they had somehow lost their biological parents, that the only people they would have wanted to be raised by were blood relatives....any blood relatives? Same for the kids you raised, if something happened to you and your partner, would you only consider relatives to be named as guardians?

    I have some blood relatives whom I would never want to be raised by, nor my kids. Gorillas would be better, like Tarzan:-)

    Yes, blood relationship is something, but not the whole thing.

    As to the gay "lifestyle", no it is not a "choice" no more than being heterosexual is. The other things Lori mentioned about her friend and her many sexual adventures (polygamy, S&M etc)are no way to raise any child, gay or straight is not the issue. CPS should investigate.

  15. Who is talking about ANY blood relatives? But yes, I'd rather go with the family ties than someone I had no biological connection with at all. I remember my daughter telling me that her adoptive father always criticized her for her heavy step when she went up a stairway. When she came up a stairway at our house, where she did have blood relatives, my husband said: You have a step just like Lorraine.

    Jane said that is when she knew she was home.

    And you outta hear my niece tromp up the steps. It's weird what runs in families, and it's familiar to see them play out.



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