Wednesday, July 21, 2010

Alabama Supreme Court ducks the question of jurisdiction to decide parentage of child of same-sex couple

On June 30, the Alabama Supreme Court vacated all the lower court orders in the case of Ex Parte N.B., an action filed by a bio mom, N.B., to be declared the sole parent of the child she bore in California while in a same-sex relationship. A California court order that A.K. is the child's legal parent (pursuant to California's interpretation of its Uniform Parentage Act, discussed in this post) remains in effect, but the child is still with the bio mom in Alabama and presumably A.K. must now initiate a process to gain recognition of that order by an Alabama court before she will actually be able to see her child.

The facts are ordinary enough. N.B. and A.K. were partners in California. In April 1999, N.B. bore a child conceived through donor insemination. The couple's relationship ended five years later, and the next year N.B. moved to Alabama with the child. The bio mom then married a man. (The bio mom is represented by Liberty Counsel).

Less than six months after this move, the nonbio mom filed a parentage action in California. Under ordinary child custody jurisdiction rules, a child's "home state" is the exclusive jurisdiction in which a custody action can be filed. When a child moves, the new state of residence does not become the child's "home state" until the child has lived there for six months. Thus, California had exclusive jurisdiction at the time to issue a custody order. Nonetheless, N.B. subsequently filed an action in Alabama to be declared the sole parent of the child. Her pleadings informed the court of A.K.'s actions in California, but A.K. was not made a party or served with the court papers, and she did not appear at the hearing. The trial court ruled in her favor of the bio mom in an ex parte proceeding (meaning no other party was heard). The Alabama appeals court reversed that ruling in 2008, citing the court's lack of jurisdiction because of the California proceedings. (The ruling was similar to the many rulings from the Virginia courts in the Miller-Jenkins case, which I've written about here.)

The Alabama Supreme Court did not address the custody jurisdiction issue at all. Instead it ruled that the bio mom should have notified the nonbio mom of the original proceeding in the Alabama juvenile court. Her failure to do so meant neither that court, nor the appeals court, nor the Supreme Court, could hear any issue raised in the case. The Court ordered all judgments in the case vacated, essentially wiping the case off the face of the earth as though the four years of Alabama litigation had never existed.

The ruling is an outrage. Of course an adverse party is entitled to notice of a proceeding. But the nonbio mom did get involved in the case seven months after the trial court's first order. A.K. asked that the order be set aside, lost, appealed, won the appeal, and then defended against N.B.'s appeal in the Alabama Supreme Court. Wiping out all the previous court orders without ruling on the merits of the jurisdictional issue means the case must start from scratch in Alabama...where the question of jurisdiction, now that the child has lived in Alabama for five years, will arise once more. For all practical purposes, N.B.'s efforts to remain a parent to her child are dead.

As if that wasn't bad enough, the Alabama Supreme Court threw in for good measure a paragraph quoting the state's Defense of Marriage constitutional amendment, with the comment that "questions regarding the judgment of the California trial court and its enforceability in Alabama may exist in light of the unequivocal nature of Alabama public policy on the issue presented by this case." In other words, the court is saying, beware other nonbio moms in Alabama; your parentage orders from elsewhere may be worth nothing here. (This in spite of the fact that the California parentage order was not based on the couple's relationship but on A.K.'s relationship with her child.)

Then again, the court did not actually hold that. It's what lawyers call dicta, language that is unnecessary to the actual ruling in the case which may therefore be disregarded in subsequent cases. We can only hope.

13 comments:

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