Alabama Invalidated a Georgia Second Parent Adoption
Updates on this case:
On March 7, 2016, the U.S. Supreme Court reversed the Alabama Court holding that Alabama cannot invalidate the Georgia adoption under the Full Faith and Credit Clause. See blog post here for more discussion.
On 11/16/15 this case was appealed to the U.S. Supreme Court. More about the appeal is available at the NCLR website – link.
One thing we know is that marriage equality does not equal parentage equality. We also know that while the world has seen a significant amount of change in hostile treatment of same-sex couples towards more acceptance, same-sex families still face a much greater threat to their security than their opposite-sex peers. This is particularly true when one parent in a same-sex relationship decides to use homophobia as a tool to deny another parent their rights as a parent. A recent case demonstrates how that can be done with a possible harmful impact that may resonate well outside their individual custody battle.
A quick summary of the facts is important to understand how the case is not necessarily applicable in the way that it might seem at the outset of just hearing that an Alabama Court invalidated a Georgia adoption. In In re: E.L. v. V.L., Jefferson Family Court, CS-13-719; Court of Civil Appeals, 2130683, the couple lived in Alabama. They spent just enough time in Georgia to be able to technically establish residency (and possibly not even that much, appellate court decisions are not detailed in the facts and it appears they may not have spent a lot of time in the state, simply leased a space for the required amount of time).
The couple was together for approximately 16 years and E.L. gave birth to three kids (one set of twins) using assisted-reproductive technology in 2002 and 2004. It was undisputed that V.L. acted as a parent to the twins and they couple sought to legally formalize V.L. as a parent and in 2007 they did a second parent adoption in Georgia after doing research and believing it would be granted in Georgia.
Couple breaks up, biomom apparently doesn’t let nonbiomom see the children. Nonbiomom petitions the Jefferson Circuit Court (Alabama) to recognize her constitutional right to parent and register the Georgia adoption judgment and award her some custody or visitation with the children. Biomom moved to dismiss nonbiomom’s case. On April 3, 2014 (three years after the couple separated and the kids would be 10 and 12), nonbio mom was awarded scheduled visitation. A couple weeks later, the court issued an order that all other relief was denied and the case considered closed. Biomom promptly moved the court to alter, amend, or vacate its judgment (denied on procedural grounds). Biomom appealed the decision.
At the appellate level she argued that:
- the Jefferson Family Court lacked subject-matter jurisdiction to rule on V.L.’s petition;
- the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment;
- the Jefferson Family Court should have refused to recognize and to enforce the Georgia judgment for public policy reasons; and
- the Jefferson Family Court denied her due process inasmuch as it awarded V.L. visitation rights without holding an evidentiary hearing at which E.L. could be heard.
On February 27, 2015, the Court of Civil Appeals released its opinion rejecting the frist three of the arguments, but holding that the Jefferson Family Court had erred by awarding V.L. visitation without conducting an evidentiary hearing. The judgment was reversed and remanded for the Jefferson Family Court to conduct an evidentiary hearing before deciding the visitation issue.
The Alabama Supreme Court noted that implicit in the court of appeal’s opinion was an implicitly finding in the judgment of the Jefferson Family Court that the Georgia judgment was valid and subject to enforcement in Alabama.
On March 11, 2015, biomom appealed the decision to the extent of the Court of Civil Appeals’ affirmance of the judgment of the Jefferson Family Court to the extent that judgment recognized and enforced the Georgia judgment. The Alabama Supreme Court granted the petition. There were several briefs in the case, including that of GAL, the Academy of Adoption Attorneys, and the Georgia Council of Adoption Lawyers.
The court claimed that in its decision, it was not reviewing the legal merits of the Georgia judgment, because the court is prohibited from making any inquiry into the merits of the Georgia Judgment by the Full Faith and Credit Clause of the Constitution and that the validity of a foreign judgment is supposed to be determined by the state in which it was rendered.
Review is limited to whether the rendering court had jurisdiction to enter the judgment sought to be domesticated – essentially a subject matter jurisdiction issue, which is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.
Biomom argued that the Georgia judgment was unenforceable in Alabama because the Georgia court lacked subject-matter jurisdiction because (1) Georgia does not provide for so-called “second parent adoptions” and (2) that V.L. was not a bona fide resident of Georgia at the time of the adoption. Biomom also argued that even if there was subject matter jurisdiction, the Alabama court should not recognize the order because it would be contrary to Alabama public policy.
The Alabama Supreme Court said the only way that they could not enforce the judgment was to find there was no subject matter jurisdiction. The court rejected the claim that Georgia law prohibits any judicial challenge to an adoption more than six months after the date of entry of the decree. The court discussed subject matter jurisidiction and wavier issues, noting that the equitable defenses of laches and estoppel may prevent a party from complaining of a lack of subject matter jurisdiction in Georgia and agreed that Georgia generally will not accept a subject matter jurisdiction challenge to its adoptions. Nonbio mom’s argument is that it doesn’t apply in second parent adoptions because the adoption statute requires termination of each parent and the Georgia court did not explicitly follow this requirement.
The Alabama Court sites the dissent in a refusal of the Georgia court to hear a motion to vacate a same-sex adoption in Georgia and finds that the Georgia court would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with § 19-8-18(b) (termination of the biomom’s rights as a parent).
The Alabama court then reviewed the Georgia law and found that the Georgia law does not allow for a non-spouse to adopt a child without first terminating the parental rights of the current parents. Since biomom’s rights were not terminated, the Georgia court erred in granting the adoption of nonbio mom. The Georgia adoption judgment is void and full faith and credit is not required.
One distinction that was made in this case is the difference between a second parent adoption and a stepparent adoption. A Georgia stepparent adoption would presumably would have been upheld in Alabama, but the court noted their was no question the parties were not married (omitting the reality that they couldn’t marry in most states) and the second parent adoption of a nonspouse was what the court rejected.
Concurrence – One justice concurred to say that adoption is not a statutory right and there exists no “fundamental right to adopt a child.” Further, the state has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother. (As far as I can tell, no one joined this justice in this concurrence).
Dissent – The dissent argues that the majority reached the merits of the decision and that is not allowed – that only Georgia could decide if it’s adoption was valid. (As far as I can tell, no one joined the dissent).
Impact of this decision
This decision could impact any second-parent adoption in Alabama from another state where the non-Alabama statutory language is ambiguous enough as to allow Alabama to interpret it to require the termination of the biological parent’s parental rights. It’s a relatively small subset of people.
However, at the time that I am writing this, according to the National Center for Lesbian Rights, who keeps the best records I’ve found on these issues, only 14 states explicitly allow same-sex couples to second parent adopt. At least, thirteen states, including Georgia and Washington do not prohibit second parent adoptions and they have been performed in some counties. This means anyone from these 13 states, and any place where the statute is not unequivocal in it’s allowance of a second parent or stepparent adoption and the lack of a need to terminate at least one parent’s rights could be invalidated by Alabama (or another state who follows Alabama’s lead).
It is a troubling decision because adoptions have long been believed to be orders that were believed a court would not terminate. Sure there’s the full faith and credit clause and that’s a strong legal argument all by itself, but there is also the best interest of the child. It’s a fairly universal belief that excluding a parent from participating in the life a child is detrimental to the child. Even parents who have done awful things to their children are typically allowed supervised visits with their children.
The over-emphasis on biology makes the concurrence so troubling. The ability to adopt may not be a fundamental right, but once an adoption has occurred a parent is a parent. Adoptive parents are just as much of a parent as a biological parent in the eyes of the law. If the concurrence were to become the law of the land this view of adoption would destabilize all adoptive families, regardless of whether the parents are opposite-sex or same-sex.
Does this mean nonbiological parents shouldn’t adopt?
No. It is possible this case (or a similar case down the road) could get appealed to the U.S. Supreme Court. Given that Chief Justice Roberts is an adoptive parent, I think he will find this decision repugnant and vote with the “liberal” arm of the court and overturn the decision. Even if this case does not go forward to the U.S. Supreme Court, hopefully it will be an anomaly. Adoptions are intentional acts by both parents. It speaks volumes about the intent of each parent and even if the adoptions isn’t allowed, a nonbioparent could argue in the alternative that they are a de facto or psychological parent (in states that have those doctrines) and the adoption decree could be evidence of the intent of the family to be a family.
This case also makes a distinction between stepparent and second parent adoptions. It is unpleasant to think that a parent who is there in the whole process of assisted reproduction and pregnancy or surrogacy and there in the child’s life is a “stepparent”, but if that is the hook that prevents a state like Alabama from invalidating a parent-child relationship, then so be it.
The Ugly Side of People
There are an unfortunate number of family law cases where one parent goes to great lengths to prevent the other parent from having access to the child(ren). Unfortunately the LGBTQ community is no exception. Even more unfortunate is that in the LGBTQ community biological parents also use homophobia or transphobia to assist in their battle to exclude the other parent. Chiefly the bioparent who now says they aren’t LGBTQ and doesn’t want their child to be around someone who is LGBTQ. (Side note in this case it isn’t clear that biomom made any statements that she was no longer LGBTQ, but given the public policy argument reference in the decision, it seems likely that is the case.)
This case will go down in my memory of one of the worst offenders along with Miller v. Jenkins (a 2006 case with proceedings in Vermont and Virginia where the bio mom used the court system to try and take her child a way from the other parent and when that failed she kdnapped the child and took the child to Central America), and In re L.B. (a 2005 case in Washington that created our de facto parentage doctrine – where a lesbian couple used a known sperm donor and when the couple split biomom married the sperm donor and tried to claim they were an in tact parent and nonbiomom should not be able to have residential time with the child).
This decision would not even exist but for a parent who was in a 16 year relationship with their co-parent trying to stop all legally-required contact with their three kids. While I believe the court should not have decided the case in the way it decided the case. I also believe that biomom should not have made these legal arguments. The trauma and damage that occurs in the lives of these children as a result of this huge legal battle to deny them one of the parents they’ve known their entire lives is tragic and completely unnecessary. This couple went to great lengths and expense to make sure that they were both parents of their children and now one parent is trying to undo all of that at great cost (monetary and emotional) to the whole family.