All Adoptive Parents Should be Frightened by Alabama Ruling

The Alabama Supreme Court has refused to recognize adoptions done in Georgia by a nonbiological lesbian mom. Same-sex parents and all adoptive parents should be frightened and appalled.

It’s a sad situation in any case, one of the far too many we’ve seen in which a biological mom tries to prevent a nonbiological mom from seeing their children after separation or divorce. Usually, however, second-parent adoptions are as close to an ironclad determiner of parenthood as one can get. After the U.S. Supreme Court ruled in favor of national marriage equality this past June, LGBTQ legal groups still advised married same-sex parents to get second-parent adoptions or court orders of parentage to ensure both parents would be recognized wherever they traveled.

This case calls the security of such adoptions in Alabama into question. The women, identified as E.L. and V.L. in court documents, began a relationship in 1995, and decided to start a family together. E.L. gave birth to three children through assisted insemination between 2002 and 2004. They lived in Hoover, Alabama, but leased a house in Georgia in 2006 after hearing that Fulton County, Georgia, was more amenable to second-parent adoptions. E.L. consented to V.L.’s adoption of the children in Georgia in 2007. The women broke up at the end of 2011, and V.L. filed a petition at the end of 2013, saying that E.L. was preventing her from seeing the children. E.L. countered that the Georgia adoption was invalid in Alabama.

Two lower courts ruled in V.L.’s favor. The Alabama Supreme Court has reversed that ruling, however, and said the adoptions are invalid.

The decision seems to fly in the face of the U.S. Constitution’s “full faith and credit” clause, which says states must recognize judgments of other states. It’s even more appalling because the court even said that the women jointly formed their family and that V.L. acted as a parent:

It is undisputed that, following the births of the children,V.L. acted as a parent to them, and, consistent with that fact, the parties eventually made the joint decision to take legal action to formalize and to protect the parental role V.L. had undertaken.

So why did they refuse to recognize the adoption? The decision, written by Chief Justice Roy Moore, states that “Georgia law makes no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.” Because E.L. did not terminate her rights—the whole point of the adoptions was to give both women rights—“it would appear to be undisputed that the Georgia court erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.”

Because of this, the Georgia judgment is void, and Alabama does not have to recognize it under the full faith and credit clause:

The Georgia court was not empowered to enter the Georgia judgment declaring V.L. to be an adoptive parent of the children. That is to say, the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment. The Georgia judgment is accordingly void, and the full faith and credit clause does not require the courts of Alabama to recognize that judgment. Indeed, it would be error for the courts of this State to do so.

This could be seen as an instance in which legal subtleties get in the way of a reasonable decision—but if we look again, we find that homophobia, not a legal twist, is the operating principle. In a special concurrence to Chief Justice Moore’s ruling, Justice Tom Parker wrote:

Acting in the role of parens patriae, 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.

What does Justice Parker cite for this belief? The case of Lofton v. Secretary of the Department of Health and Family Services, a 2004 decision from the U.S. 11th Circuit Court, upholding Florida’s ban on adoption by gay men and lesbians—a ban then declared unconstitutional in 2010.

This is perhaps not surprising, coming from Justice Parker. He was the founding Executive Director of the Alabama Family Alliance (now the Alabama Policy Institute), a conservative think tank. He was later the founding Executive Director for the Alabama Family Advocates, state organizations associated with Dr. James Dobson and Focus on the Family—an organization long opposed to LGBTQ equality.

Chief Justice Moore, too, has very conservative credentials. His official bio notes that in 2003, he was “removed from his position by a judicial panel for refusing to remove a Ten Commandments monument that he installed in the rotunda of the Alabama Judicial Building to acknowledge the sovereignty of God.” He was reelected in 2012.

There was one dissenting voice in the court of nine, Justice Greg Shaw. His argument against the ruling is a technical legal one about jurisdiction, noting that full faith and credit prevents Alabama from ruling on how Georgia applied Georgia law, but he gets to the heart of it when he writes,”I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama.” It’s not just a matter of the E.L. vs. V.L. case’s specifics—a legal parent not terminating her rights before another person adopts her child. Shaw notes that “any irregularity” in a probate court’s decision in an adoption could be seen as invalidating its authority to have issued the adoption.

Cathy Sakimura, family law director of the National Center for Lesbian Rights (NCLR), rightly observes, “Children who are adopted must be able to count on their adoptions being final—allowing an adoption to be found invalid years later because there may have been a legal error in the adoption puts all adopted children at risk of losing their forever families.” (NCLR, along with two Alabama attorneys, represents V.L.)

The ruling is hugely frightening, and I hope grounds are found to make it a federal case and have it overturned upon further appeal. If judges feel they can interpret other states’ adoption rulings to get around full faith and credit, then all adoptive parents, not just same-sex ones, should be very worried.

This is not to say same-sex parents should stop getting second-parent adoptions, thinking they’re useless. Alabama’s refusal to recognize them contradicts the recognition they get in most, if not all, other jurisdictions that have ruled on the matter.

While the implications of the ruling are broad, let us not forget the narrower ones. A mother is now separated from the children she helped create and for whom she cared for years. My heart goes out to them.