Opening a new phase of family law for gays?
on Nov 17, 2015 at 12:37 pm
An Alabama woman who won adoption of her same-sex partner’s three children in a neighboring state and then lost them in her home state is asking the Supreme Court to enter a new phase of family law for gays and lesbians: their rights as parents. The case of V.L. v. E.L. — lesbian partners who have broken up — focuses on how state courts should interpret adoption rights.
The partners, identified in court papers only by their initials, were not married when a Georgia court formally approved both as parents, so the case does not directly implicate the Supreme Court’s ruling last Term in Obergefell v. Hodges, granting same-sex couples an equal right to marry. But it does focus directly on differing rules for adoptions in same-sex relationships.
At the center of the case — filed late Monday at the Court — is a provision of the Constitution that generally requires one state to respect the court orders of other states: Article IV’s Full Faith and Credit Clause. The Alabama Supreme Court insisted it was obeying that mandate even as it chose to second-guess the way Georgia interprets its own laws on adoption.
The Alabama court ruled that Georgia would not allow any same-sex partner who was not the biological mother of a child to adopt unless the partner who is the biological parent formally gave up all of her parental rights. Because the mother did not do so in this case, the decision said, the Georgia court had no authority to grant parental rights to her partner. It nullified the Georgia adoption order.
Lawyers for V.L., who lost all legal right of access to the three children as a result of that ruling, told the Supreme Court that the Alabama decision “would create a massive loophole in the Full Faith and Credit Clause.” That would allow any state to void another state’s adoption order if it could find any defect in that order, they said. “There is no legal or practical basis,” they added, “for singling out adoptions as uniquely unworthy of full faith and credit.”
Those attorneys asked the Supreme Court to order Alabama courts to give V.L. a temporary right to visit with the three children, and then to grant review of the Alabama decision and overturn it. (The stay application has been docketed as 15A522, and the petition for review as No. 15-648. The state supreme court ruling is here.)
The legal papers were filed with Justice Clarence Thomas, who handles emergency requests from the geographic area of the Eleventh Circuit, which includes Alabama. He has the option of acting on his own, or of sharing the issue with the full Court — now the more common practice.
The couple were in a same-sex relationship for about sixteen years, during which E.L. gave birth first to one child and later to twins. The first child is now twelve years old and the twins are ten. V.L. has not seen the children since April, when the state court put her adoption right on hold while it decided the case, in which E.L. challenged the adoption.
While the couple remained together, they agreed in 2007 that V.L. should become an equal parent of the children. They had heard that Georgia might allow such an adoption, so they rented a house temporarily in Atlanta, applied for the adoption, and received a formal approval of their two-parent rights. E.L. agreed fully with that arrangement, and gave her legal consent.
The relationship broke up later, and V.L. complained in Alabama courts that E.L. had denied access to the children. V.L. then sought visitation rights in Alabama, with E.L. opposed. The case worked its way up to the state supreme court, which ruled against V.L.’s rights in September.
