vendredi 21 septembre 2012

Same Sex Unions and Marriages: The New Frontier of International Parental Child Abduction

Gay & Lesbian Unions:
An Increase In International Parental Child Abduction Cases


As same-sex partnerships, unions, and marriages become more commonly visible as an integral part of our society,  the I CARE Foundation has been contacted by numerous parents of these unions who have expressed concern surrounding their particular partnership’s failure and how the end of their relationship may impact the child or children of the relationship, particularly when one of the partnering parents desires to remove the other partnering parent from the child or children’s lives, and relocate to another state or country.
In another set of words, what I am referring to is 'Inter-State or International Parental Child Abduction'.

On occasions, the communication exchanges the I CAREFoundation receives include queries by a parent seeking insight concerning issues such as jurisdiction, parent-rights, mobility, relocation, and tragically – though not directly stated – legal defenses on interstate or international abduction should a parent be inclined to violate a court order pertaining to parental rights (I offer a heart-felt plea to those who are considering illegal removal of a child: I speak from experience as a chasing parent - please do not do this. The ramifications on your child will be severe).

Obviously, the challenges all children face during divorce or separation are harsh.  When one of the child’s parent’s attempts to break the child’s bond with their other parent, including relocating from one state to another, or in certain cases, relocating without permission to another country (this is abduction), the challenges and hardship that child faces grows exponentially.  Clearly, in all child custody cases, the longer the litigation takes the more strain that is placed on an innocent, defenseless child of a failed relationship.  Unfortunately, there exists a new frontier in family law: how local, federal, and international courts uphold the rights of children to both of their parents in failed gay and lesbian legal unions and marriages.  To say that a legal minefield exists, would be an understatement.

Tragically, in cases of high-conflict separation that include issues of jurisdiction and the upholding of a non-biological ‘birthing’ parent’s rights, the conflict can become extreme.  Everyone suffers. The child suffers. The former partners suffer. And from what I have seen, the pain and anguish for all is extraordinary.

In my capacity as the Founding Director of the not-for-profit International Child Abduction Research & Enlightenment Foundation (the “I CARE Foundation”), our foundation has seen and assisted numerous high-conflict families challenged by issues of both mobility and abduction.  Our activity includes conducting extensive research in the area of child custody and cross-border conflict, working to create (successfully) new laws and government policies directed to help protect children from cross-border conflict, and when possible, assisting in the reunification of internationally kidnapped children.

These cases are never easy. 

In reflection, when I think of the hardships involved in any case concerning mobility or child abduction regardless if we’re addressing a heterosexual or homosexual partnership, the reality is all parties involved face severe emotional, spiritual, and financial hardship no words could ever accurately express.

However, it appears that children caught in the cross-hairs of gay or lesbian partnership custody disputes where there are contested questions of mobility or risk of abduction, or an actual instance of abduction face potentially greater hardship than heterosexual partnerships because of the legal minefield of litigation their parents must navigate through due a wide range of legal issues, including but not limited to questions revolving around local, federal, and at times, international law (or lack of laws and policies) that is specific to same-sex unions.

So if you are a mother or father who is involved in a child custody dispute that originates from a same-sex union, remember that the longer the litigation goes on, the more your child will suffer because litigation of any kind does have a direct, ugly impact on the lives of all involved.  

Now, I do not have my head in the clouds and think that all separations will end amicably.  

However, sharing my birds-eye view of witnessing some of the most difficult, extreme high-conflict family disputes, many involving international litigation, I can undeniably attest that in all of these cases, it is the child who will always suffer no matter what any of the child’s parents thinks (obviously cases of abuse are the exception and should never be tolerated under any circumstance).

Recently, I have been following Erik Eckholm’s of the New York Times fascinating, yet heart-breaking coverage of the story of ten year old Isabella Miller-Jenkins. 

The young girl has two mothers and is the product of a same-sex union that took place in Vermont between Ms. Lisa Miller and Ms. Janet Jenkins in 2002. Isabella was conceived by Ms. Lisa Miller in 2002. The coupled separated in 2003. 

However, since 2009, the child has been living the life of a fugitive in impoverished Nicaragua with one of her mother’s, Ms. Lisa Miller, who under American law, is considered to be a fugitive and an abducting mother now wanted for international abduction.

Unfortunately for Ms. Jenkins, Nicaragua is not a signatory country of the Hague Convention on theCivil Aspects of International Child Abduction, and legal reach under international law appears to be limited.

According to Mr. Eckholm’s New York Times coverage, Ms. Miller no longer desired to allow Janet Jenkins any contact with their daughter Isabella. Since the former couple’s separation, Ms. Miller apparently violated Ms. Jenkin’s rights of custody on numerous occasions that were previously established under Vermont law and upheld in Virginia (where Ms. Miller relocated with Isabella). 

So three years ago, in another act to separate Isabella from Ms. Jenkins, Ms. Miller decided to flee the United States and relocate to Nicaragua without Ms. Jenkins knowledge or permission.

Like the vast majority of international parental child abductions, Ms. Miller had a great deal of help. 

You see, Ms. Miller sought and received the assistance of Mr. Kenneth Miller, the leader of the conservative Beachy Amish Mennonite Church of Stuarts Draft, Virginia.

Under the religious beliefs of the Amish Mennonite, gay and lesbian life is a sin, and apparently Ms. Miller embraced this idea during the child custody dispute she had with Ms. Jenkins.

So it appears that perhaps, and I say this with some reservation, that the possibility exists that Ms. Miller may have adapted a condemnation of her lesbian lifestyle she previously shared with Ms. Jenkins in order to defend against the criminal act of abduction and her desire to not obey a Vermont judges court orders regarding Ms. Jenkin’s access and co-parenting of Isabella once the couple separated prior to the abduction.

Of course, it is conceivable that Ms. Miller actually now believes that her anti-gay or lesbian lifestyle is correct and in accord with her new found Christian beliefs?

However, what is of interest is how religion or persecution for following your religious beliefs will inevitably be used to defend against the act of international parental child abduction by a taking parent.

Today, from what I understand, the child Isabella remains on the run, living a life of a fugitive in Nicaragua (or perhaps someplace else) with Lisa Miller, while the child’s other mother, Ms. Janet Jenkins, continues to seek legal remedy to have her rights of parenthood that were established under Vermont law, and upheld in Virginia enforced.  I would imagine Ms. Jenkins is also deeply concerned about how her daughter is holding up considering that she is being wrongfully detained by Ms. Miller.

According to numerous child psychologist, the Isabella could be seen as a prisoner of a fugitive parent who has been highly abused and neglected, as child abduction is considered child abuse.

Is Ms. Miller using religion and new-found religious beliefs as the basis for her to continue to flee, or could it be possible that Ms. Miller has actually rejected all things connected with a gay or lesbian lifestyle and actually believes living a same-sex lifestyle to be sinful?

Is Isabella safe, or is the life she has had to live for the past three years had a deep and troubling influence on her, and if so, can the impact be reversed or treated?

As for the Beachy Amish Mennonite Church leader Kenneth Miller, he was found guilty of abetting an international parental childkidnapping this past August and is facing up to three years in federal prison.  Mr. Miller’s sentencing date has not yet been determined.

As for the legal issues that present themselves in this case, it is going to be interesting to see if Ms. Miller will be able to remain outside of the United States and the reach of law established by its courts.  Of course it is also going to be interesting to see how a parent’s religion and sexual orientation will be viewed from country to country with respect to international parental child abduction cases.

For example, in cases where a child is abducted to a Hague signatory nation, will a parent who once lived a gay or lesbian lifestyle who had a child from a same-sex union seek protection for an act of abduction under Article 13 B of the Hague Convention by making a claim in a country they abduct their child to that they are unable to receive fair treatment under the laws of the child’s nation of original jurisdiction based upon religion and how their religious beliefs juxtaposes itself with their past or present sexual orientation.

Is the situation for Isabella and other children of abduction who will come after Isabella a mess?

You bet it is. All international parental child abductions are terrible.

Did Ms. Lisa Miller really reject her lesbian lifestyle or is she using her newly embraced Mennonite religious beliefs to push away Ms. Janet Jenkins from Isabella’s life?

I don’t think anyone really knows.

However, one thing cannot be dismissed in cases of international parental child abduction, and that is that in many of these cases, the taking parent carefully creates a plan of abduction that is well thought out, and typically involves the assistance of others. 

Lisa Miller’s abduction of Isabella was certainly well thought out and she was certainly aided as demonstrated by the conviction of Mr. Miller for aiding in Isabella’s abduction.

Again – it is a mess and one terrible tragedy for this innocent child – who remains on the run . . . perhaps in Nicaragua or perhaps someplace else.

Of course there is the argument presented by Ms. Lisa Miller and her supporters that she was acting to protect her daughter from a gay and lesbian lifestyle that she no longer participated in and rejected as sinful.

Not too long ago, one of my pals whom I have been very close friends with for all of my adult life recently separated from his partner.  Together, these two wonderful fathers, ‘Dad’ and ‘Papa’, raised one incredible little girl together who I am convinced will one day have a far-reaching and positive impact on our wonderful world.  Dad and Papa were the definition of two loving, dedicated, kind, nurturing, and caring parents.

Then something happened, and the relationship came to an end.

Did the relationship end because of some ungodly act by one of the men? No.

The relationship ended because their needs and expectations of one another and what they desired from life had changed.

Was there hurt and anger?

Of course, particularly by the father who did not want the relationship to end.

So, what did that upset father do?

He decided at first that since he had some legal leverage associated with the young daughter both fathers raised, that he was going to relocate to another state and severely limit the other father’s rights of custody on their daughter.

And in fact, that is exactly what happened.

Sadly, the relocation occurred without the other father knowing.

And as you may imagine, the situation became rather ugly. Then uglier.

Caught in the cross-hairs was their little daughter who I would often take to the Magnolia Bakery for a “perfect cupcake.”

And my heart broke for my little friend who was more interested in Dora The Explorer and Cinderella than the fighting that took place between her two fathers, who mind you – are both truly remarkable, amazing, loving individuals.

But these child custody cases – they sure know can make anyone look terrible.

I will never forget that while my two friends volleyed in a sea of nasty litigation (that cost them such an enormous amount of EVERYTHING), I had the opportunity of visiting the parent who had relocated with their daughter four months after the initial separation.

It was my first visit since their unexpected relocation.

As you may imagine there was a great deal of frustration that was vented by this particular father (similar to the other father). He shared his feelings about the failed relationship, what was best for his daughter, what was best for him, and the awful litigation that took place.

As we spent the late morning together, I sensed that my friend had a little sense of paranoia that perhaps I came to visit him in my capacity as a director of the I CARE Foundation. 

This was not the case, as I expressed that I came to visit because he too was my friend, and that I was concerned about the overall ugliness that was depleting so much from his daughter’s family’s life.

The key words being that both the young girl had a family: a ‘Dad’ and a ‘Papa’, and that no matter what would occur, both ‘Dad’ and ‘Papa’ were loved by their child, and that as this lovely child’s fathers, they had an incredible responsibility to stop their feuding and to truly act like the remarkable, compassionate, understanding, brave, courageous, and intelligent individuals they were.

Well, as there was a long history between us, one that included my friend knowing I am very direct, my words were accepted.

So too was my suggestion.

I asked my friend if he would excuse himself from the room (and make us lunch) so that I could talk to his daughter alone. I also suggested that he hear the truth of her heart, and asked him to listen in so he could hear my conversation.

And that is exactly what happened.

What was heard?

This little amazing girl just six years old shared that she missed both of her fathers and loved both of them very much.  Remarkably, she understood that parents get divorced sometimes. But she said that even when parents do not live together any more, they should be nice to one another. Real nice.  And she also said that she was taught that her family was different than other families. That her family was really special.  Super Special. Then she said that they weren’t acting really special.  Then she asked me why her ‘Dad’ and ‘Papa’ would lie to her and say that she was part of a special family, when they were so mean to one another?

Now let me say this. Her words about how special her family was resounded within like Quasimodo’s Notre Dame’ bells would cover Paris. 

Indeed her two fathers were both incredibly special individuals. As I saw and still see it, they were brave in saying to the world, “this is who I am” and living the life they each believed in. They were both caring and compassionate and active members of their micro and macro communities. They were successful. They had many friends. And they were incredible – no incredibly ridiculous – as in amazing – fathers.

And somehow these incredible parents, these incredible individuals . . . forgot how incredible they were.

Now as you can imagine, my friend who was in the kitchen hearing my conversation with his daughter realized what his daughter was saying: that it’s okay to not live with my other father, but remember, we’re still a very special family because the two of you are both very special, and the two of you – your my ‘Dad’ and my ‘Papa’, and you have to continue to be special because of me.

I must say, that later that afternoon, after his daughter decided to take a little nap, my friend said something to me that I think is truly remarkable.  And I wrote it down. 

This is what he said. “Sometimes it is easy to forget how special we are.  Raising a daughter as a gay couple requires being special – and holding ourselves more accountable to one another, even in separation for our child’s sake.”

Fast forward four months from the time of that conversation and a true, sound parenting plan was created and actually was working, and working well. Both fathers – my friends – were peacefully and civilly rebuilding the trust that was necessary so they could in fact continue to be the special persons they were.  The healing had begun . . . and in fact the healing really started as soon as the messy, ugly litigation stopped.  In fact, they live in the same town and in the same community (again).  They have embraced the wonderment of being fathers – their daughter’s ‘Dad’ and ‘Papa’.

And though my little friend does not live with both of her fathers at the same time, she is being raised by both of them, and she does see each of them equally, and regularly.

And thank God peace, friendship, and good parenting is prevailing.

As I write this, I can’t help but think how my two wonderful friends acted with great courage and bravery and love for their daughter and found a way – to act in their love of their daughter.

Before I go, I would like to simply say that the nasty  litigation that occurred between my two friends was not necessary.  And they will be the first ones to say this.

But sometimes, when in the midst of child custody cases, parents can get sucked into the vortex of the cyclone of litigation. 

When they do, it is easy to forget the good things you are litigating about: the love and rights of your child.

Breaking the magnetic pull of continuing to litigate is not an easy task. It takes courage. It takes fair play. It takes putting your ego in check. And it takes acting in fairness for your child.

And it may not be easy to do.

But it can be done.  And your child or children will be much better off if you do.

Of course this is not to say that working things out in order to co-parent is easy.  Each separation has its own challenges, and as I stated, it appears that child custody cases regarding mobility present an even harder burden onto the child.

I would like to add this: please remember that open and honest dialogue is always the best choice if your choice revolves around what is best for your child or children.

So in parting, I would like to share that all child custody cases concerning mobility and/or abduction cause extreme hardship on children of the relationship, and this is particularly true in same-sex partnerships in part due to the challenges in law all parties must face.  If at all possible, try to mediate your differences reasonably, fairly, and respectfully with one another, and remember . . . you do not have to be a biological birth-giver, regardless if you are gay or straight, to be one great, loving parent.

One last thing . . . Thanks B and Z for letting me share a part of your story. I am very proud of the two of you  . . . and so happy for your daughter.