U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption

Back in September 2015, I wrote a post about an Alabama Supreme Court invalidating an adoption of a lesbian couple that was issued in Georgia. Today I get to write a post that the U.S. Supreme Court has overturned the Alabama Supreme Court in V.L. v. E.L., 577 U.S. ____ (2016). The court affirmed that adoptions are judgments that must be respected from state to state.

Quick summary of the case. Moms were in a relationship from 1995 to 2011. Biomom gave birth in 2002 to one child and in 2004 to twins. Couple lived in Alabama, but the couldn’t do a second parent adoption in Alabama, so they set up temporary residence in Georgia and the nonbiomom adopted all three children in 2007.

Couple breaks up and biomom withholds the children from nonbiomom. Nonbiomom turns to the court to get visitation and Biomom seeks to dismiss the case. The case goes on for years (break up was in 2011, Alabama Supreme Court decision was issued on 9/18/15) with the court finally concluding that Georgia did not allow the court to enter an adoption order. The court was clear that this was because the couple was not married and that the statute did not allow adoption without invalidating the parent’s rights and since biomom’s rights were not invalidated, Georgia did not have the jurisdiction to enter the adoption order.

The Supreme Court disagreed with Alabama in a Per curiam (meaning a decision by the court as a whole) finding that the Alabama Supreme Court erred in refusing to grant the adoption judgment full faith and credit.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so are confused that parentage issues may now be covered by the Full Faith and Credit. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order. Adoptions are court orders, where all parties are represented and the court makes a judgment.

Other types of court orders are also judgments. For example, there was a recent issue in Texas (see blog post). This was a confirmation of parentage order from California that was upheld applying Full Faith and Credit.

I am an advocate that in Washington, and nationally, especially with states that have Uniform Parentage Acts that affirm that a child born of a marriage is presumed to be the child of the marriage, that same-sex couples should have access to a Confirmation of Parentage. Essentially a court order would make it clear that each parent is an intended parent and that as a parent is entitled to all of the rights and responsibilities of a parent, similar to an adoption without as much expense and invasion (i.e., no need for home studies).

The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive on parent should not be considered somehow more of a “real” parent. This should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple). In fact, I believe that this is something that can and should be able to be done through the Division of Child Support in the same way the state, through the Division of Child Support, establish parentage for opposite-sex couples based on paternity.

The Sad Reality

Even though the U.S. Supreme Court has made it’s decision, there is not necessarily immediate relief for the children and their nonbiomom. They now have to go back to the trial courts and try to work out a parenting plan. Five years passed and it will probably be close to six years before anything is finalized. The kids, born in 2002 and 2007 will be about 15 and ten years old. The twins (the younger children) will have spent more than half their lives with their parents fighting over them. While the U.S. Supreme Court decision is a win for future same-sex couples, and while a win for this family, it brings to mind an expression that “justice delayed is justice denied.” This whole family has lost too much of their lives in this fight.