Is an Adoption Valid in Every State?

     

     This guest post is from Regent Law student Constance Daly, who is currently studying family law:

     In a September 21st article under Constitutional Law section of the ABA Journal, Debra Cassens Weiss wrote a brief article on the Alabama Supreme Court’s refusal to recognize a lesbian adoption granted in Georgia. The article highlights one of the quandaries courts face in addressing this relatively new area of the law where inconsistencies with established law create dilemmas. Cassens Weiss’s article references a Reuters' article by Daniel Bases, and it is helpful to read both to get a fuller picture of what was going on.

     The lesbian couple lived and worked in Alabama, but went to Georgia to take advantage of the more liberal adoption laws there. One woman, E.L., had conceived three children by artificial insemination and her partner, V.L., adopted them under Georgia law in 2007. The couple split up in 2011, leaving a question of visitation rights. V.L. did not file her suit until 2013, but this was still well before the 2015 U.S. Supreme Court’s ruling that legalized same-sex marriage in all states.

     Oddly enough, the Alabama court, per curium, did not base their decision on Alabama law, but rather on the basis of the Georgia court not properly applying Georgia law. Georgia law doesn’t allow a nonspouse to adopt a child unless the biological parents’ rights are terminated. Homosexual marriage was illegal at the time of the adoption, therefore V.L. was not a spouse. The Alabama decision was 7 to 1 in holding the original adoption as void, and thus negating full faith and credit clause of the U.S. Constitution as a non-issue (at least in this court’s opinion). Had the adoption taken place after the 2015 U.S. Supreme Court’s ruling then the couple could have married and the adoption would presumably have been legal. Whether this case is appealed, and whether the higher courts will hold that the law of the time remains valid for cases decided at the time, or whether they determine that the new same-sex marriage laws should be applied retroactively, is going to be an emerging issue to watch!