Presumption of Parenthood

is not exactly equivalent to the Presumption of Paternity that has long reigned in family law. This is just one of the many issues involved in the Miller-Jenkins custody dispute that involves both Vermont and Virginia law. One of the attorneys birth mother Lisa Miller hired early in the case told her that under Vermont's civil union statute, there was a presumption that any child born within a civil union was presumed to be the child of both parties to that union. A rule that makes perfect sense in the case of an opposite sex union makes no sense in the case of same sex unions. Here is an excerpt from a long article on the Miller-Jenkins case::

JUDY BARONE HAD BEEN A FAMILY LAW ATTORNEY IN RUTLAND for more than 20 years when she agreed to represent Lisa. Barone concluded that her new client had been unjustly deprived of her right to argue that Janet was not Isabella's parent, she said. So she filed a motion asking Judge Cohen to withdraw the waiver of that right.

Cohen wanted to know if Barone was suggesting that Janet was not entitled to any parental rights solely because she had no biological connection to Isabella.

"No," Barone said. "The law in Vermont is clear that a child born during the time of the marriage to one of the people in the marriage . . ."

"And civil union," the judge interjected.

"And civil union," Barone agreed. "Would be rebuttably presumed to be a child of the civil union, the marriage. That leaves the right of either party to rebut the presumption. My client chose to rebut the presumption. She noticed the court of her choice, and it was waived involuntarily by her counsel that morning. Our request, judge, is that we put that issue back before the court."

Lisa and Janet's breakup had exposed a fundamental flaw in Vermont law, Barone suggested. Vermont's civil union statute made it a rebuttable presumption that Janet was Isabella's parent, yet spelled out no specific grounds for rebuttal. Other Vermont statutes, which predated the civil union law, detailed two routes to establishing legal parental rights: having a biological connection to a child, or adopting. Janet would not meet either of those standards, Barone said. "I think this case is really about the standard in Vermont that we have to be able to establish parentage," Barone told the judge. "What can be more basic and important?"

Janet's lawyer, Theodore Parisi, said that he found it a "huge stretch" to think that the Vermont statutes requiring proof of adoption or a biological connection to establish legal parental rights applied to people in civil unions.

Cohen agreed. Janet "is presumed to be -- in my view, your client without question is presumed to be the natural parent . . . by the basis of the civil union," Cohen told Parisi.

"We've got to look at the law," Barone countered. "That's our job here . . . If there is a problem with this law, then that's not your fault, my fault, this couple's fault. The solution will come. But we can't deny her her rights . . . There's a law that says who the parents are. We've gone by this for years in marriage, and in civil unions we have to work this out. It may be uncomfortable, and I grant you that it is for everybody concerned. But it's important."