Who says a child's two parents have to be a "couple"? Not Canada

With many states requiring same-sex couples to marry before they can both be parents of the same child, it's great to read this story out of Ontario, Canada, about two women committing to parentage without ever having had a conjugal relationship with each other.  Elaan has two parents who are very close friends.

About three years ago, a New York judge allowed a gay man to adopt the child he was already raising with a female friend.  The two friends tried conceiving a child through insemination but were unsuccessful.  They remained committed to co-parenting and arranged to adopt a child from Ethiopia.  Because they were not married, only one could adopt the child overseas.  The woman adopted the child and returned to NY, where the two petitioned to have the man do a second-parent adoption.  In that case, the court had to find that the two friends met the definition of "intimate partners" in the statute.

I want to give a shout out to Angela Kupenda, who wrote twenty years ago about the model of two African-American adults adopting a child together in circumstances where each might hesitate to take on parenting alone.

This isn't uniquely a gay rights issue, but being gay means pregnancy will not happen by chance.  It will take planning.  It calls out for creativity, more creativity than is found in limiting joint parenting to married couples of any gender combination.

It's the children, stupid! ...Or why Ryanne, Nolan, and Jacob still don't have two legal parents

The Sixth Circuit Court of Appeals has upheld the bans on same-sex marriage in four states: Michigan, Ohio, Kentucky, and Tennessee.  I hope the Supreme Court hears the case (or the Sixth Circuit, en banc) and reverses, but I have another fish to fry here.

I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose.  April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising.  In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions.  Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married.  It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children.  And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry.  (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents.  This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.

Every adoption requires a judge's finding that the adoption is in the child's best interests.  All DeBoer and Rowse wanted was for a judge to examine their family and make that determination.  Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption.  Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did.  They filed a challenge under the US Constitution in federal district court in Michigan.  In this post,  I document what went wrong when the judge decided the case was really about Michigan's marriage ban.  His reasoning was that if the couple could marry, then they could do stepparent adoptions.

But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children.  Here is what the trial judge said in October 2013, in a footnote:

The Court expresses no view on the constitutionality of [the statute that] limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants' enforcement and defense of [the adoption statute]. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the [state's ban on same-sex marriage]. Thus, the relief plaintiffs request hinges on the constitutional validity of [that ban].

The case then proceeded to trial on the marriage issue (which I wrote about here and here), culminating in the favorable ruling that the Sixth Circuit reversed yesterday.  The trial judge never did squarely address the second-parent adoption claim on its own, and the lawyers for DeBoer and Rowse did not make him.  They should have.  The judge was factually wrong when he said that: "Plaintiffs may not jointly adopt their children because they are not married."  They could not jointly adopt because Michigan does not allow second-parent adoption.

Consider this.  If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down.  Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption.  But then the lawyers would have appealed that issue  as a cross-appeal to the state's appeal of the ruling striking down the marriage ban.  THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.

I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition.  Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process.  In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.

The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption.  The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory.  When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests.  That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children.  But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.

Second parent adoption -- in the European Court of Human Rights, the Supreme Court of Puerto Rico, and federal district courts in Michigan and North Carolina

Adoption should be about the best interests of the children involved, not the marital status, gender, or sexual orientation of the parents.  A number of recent rulings and pending cases show how wrong courts can be when they stray from this basic principle.

I wrote extensively about X. and others v. Austria, when it was argued last fall in the European Court of Human Rights.  Austria allows a second-parent adoption by a mother's male, unmarried partner, but not by a mother's female partner.  Last month, the ECHR ruled in favor of the plaintiffs.  The Court found that it was unlawful discrimination on the basis of sexual orientation.  This is the good news.

The bad news is the ECHR's previous ruling against the lesbian couple in Gas and DuBois v. France. France does not allow any unmarried partner to adopt.  Gas and DuBois were unable to complete a second parent adoption because they were not married; an unmarried different-sex couple would also be unable to do a second-parent adoption in France.  This is because, like some American states, the adoption by the nonbiological mother or father would automatically cut off the rights of the biological mother, unless the couple was married. The ECHR said that this was not discrimination on the basis of sexual orientation because the rule applied to same-sex and different-sex couples.  The ECHR further said, essentially, that marriage is special and there is no discrimination if a country treats married couples differently from unmarried couples. In X and others v. Austria, the ECHR reiterated that a country need not allow any unmarried partner to adopt.

Last month, the Puerto Rico Supreme Court ruled that it was not unconstitutional to deny a second parent adoption to a lesbian couple.  News reports leave it at that, but I discovered today, reading an English translation of the opinion, that Puerto Rico does allow a man who is not married to a mother to adopt her child without terminating her parental rights.  Specifically, the statute says that a single parent's rights are not terminated by an adoption of the child by someone of a different sex.  The court said this was not sex discrimination because it applies equally to men and women.  In other words, a man would not be able to adopt a child of his male partner. (Really.) With the moral force of the ECHR ruling in X and others v. Austria, and the powerful anti-discrimination norm articulated by the Inter-American Court of Human Rights last year in Atala v. Chile, this case should go next to the Inter-American Commission on Human Rights (the first step to the Court).  The mothers' lawyers have filed for reconsideration.  Perhaps they will head to the Inter-American Commission next.

Finally, the conflation of adoption and marriage is showing up tomorrow in Detroit when Federal District Court Judge Bernard Friedman hears argument in the case of April DeBoer and Jayne Rowse, who last year challenged the constitutionality of denying them the ability to complete second-parent adoptions of their three children in Michigan.  At an initial hearing on the case last year, Judge Friedman suggested the underlying problem was the state's ban on same-sex marriage and invited the couple to challenge that ban, which they did.  The state's motion to dismiss will be heard tomorrow.

But the problem is not the marriage ban.  Adoptions are evaluated individually based on the best interests of the children.  Requiring a couple to marry in order to both be parents of a child they are raising together is bad law and bad policy.  If a child has two functional parents, nothing should stand in the way of a court finding that they can both be legal parents through adoption. When the highest court in New York approved second parent adoptions close to two decades ago, the challengers were both a lesbian couple and an unmarried different-sex couple.  Lambda Legal reprsented both couples.  Judge Friedman should not have turned the case into a case about marriage.  And the couple and their lawyer should have insisted that is not what it's about. (In contrast, the ACLU, in Fisher-Borne v. Smith, is challenging the constitutionality of North Carolina's ban on second-parent adoption as a matter rightly distinct from the state's ban on same-sex marriage.)

Kansas nixes second parent adoption

A Kansas appeals court has ruled that the state does not allow second parent adoption.  The case decided earlier this month, In re I.M., involves heterosexuals. I.M.'s mother married J.M. when I.M. was a toddler.  They raised I.M. and a biological child they had together for three years and then they divorced.  For the subsequent three years, even though I.M's mother remarried, J.M. had parenting time with both children.  I.M. refers to him as her father.

J.M. filed to adopt I.M.  The mother consented, on the condition that her rights not be terminated.  (I.M. had an identifiable biological father, but J.M. alleged that his consent was not necessary because he had had no relationship with I.M.).

In a short opinion, the Kansas Court of Appeals ruled that the statute did not permit such an adoption.  Because J.M. was no longer married to I.M.'s mother, his adoption of I.M. would terminate the mother's parental rights. The court acknowledged that some states do allow such adoptions but refused to interpret Kansas law to do so.

There is no way to distinguish this case from a second parent adoption involving a same-sex couple.  So unless the Kansas Supreme Court some day rules otherwise, there will be no second parent adoptions for children of gay and lesbian parents in Kansas.

European Court of Human Rights hears another second-parent adoption case

Earlier this year, the European Court of Human Rights ruled against a lesbian couple's claim that France's refusal to allow second-parent adoption violates the European Convention on Human Rights.  I wrote about that case, Gas and Dubois v. France, in an earlier post.  Today, the ECHR heard another case, X. and others v. Austria, but this case raises a different issue.  France did not allow adoption by any unmarried partner of the birth mother.  Austria, on the other hand, allows a mother's unmarried different-sex partner to adopt, but does not allow a mother's same-sex partner to adopt.  Thus this case is explicitly about the distinction based on sexual orientation.  In Gas and Dubois, the ECHR ruled that the case was not about sexual orientation.  (That doesn't make it better in my opinion, as every adoption is examined to be certain that it serves the child's best interests and that analysis can be done for unmarried as well as married couples.)

The webcast of the case argued today is available in English here.  The lawyer representing Austria stated that Austrian law is based on the principle that the child has one father and one mother.  She argued that adoption law is based on this principle as well because adoption attempts to recreate the circumstances of the biological family.  She also asserted that sexual orientation was irrelevant, although that seems patently ridiculous since she explicitly said Austria did not want a child to have two mothers or two fathers.  (Austria passed a statute in 2010 forbidding adoption by same-sex couples, but that law is not at issue in this case, which was decided under prior law.  That statute sure does show the position of the Austrian government, however.)

The couple is represented by Helmut Graupner, an Austrian attorney who is a leading European gay rights advocate.  He pointed out that only four European countries allow an unmarried different-sex partner to adopt but not a same-sex partner.  Forty-two countries, on the other hand, either allow only a married partner to adopt or allow both different- and same-sex unmarried partners to adopt.  Graupner argued directly that children of same-sex couples are not disadvantaged when compared to children of different-sex couples, and he listed all the child welfare professional associations who support adoption by same-sex couples.  He also referred to all the ECHR law against discrimination based on sexual orientation, and the Inter-American Court of Human Rights ruling in Atala (which I covered in this post and which is the strongest ruling in favor of lesbian and gay parents under international human rights law.)

Intervenors supporting Austria provided the Regnerus study for their position against allowing adoption by same-sex couples, which Graupner refuted by noting, as everyone has done by now, that the study compared children of intact married heterosexuals with children whose parent had ever had a same-sex relationship, not with children who had lived for a long period with a stable same-sex couple.  (For an example of a typical rebuttal to Regnerus, see this friend of the court brief filed in one of the DOMA cases.)

The child in this case has been raised by the mother and her partner for thirteen years (the case started when he was nine; he is now seventeen.) The child does have a biological father who did not consent to a second-parent adoption. The lawyer for Austria stressed this, but Graupner noted that there is a legal process and standard for overcoming the father's objection, and that process and standard would have been applied had the mother's partner been male, but it was not available to her female partner.  The lower courts explicitly ruled against the couple based on the mother's partner's legal inability to adopt, something one of the courts approved based on the child's need for attachment to one male and one female parent. So no court ever ruled on whether the father's refusal was justified or should be overcome.

European Court of Human Rights rules against lesbian couple seeking second parent adoption in France

The European Court of Human Rights has ruled against Valerie Gas and Nathalie DuBois in their action against France for refusing to permit second parent adoption.  I wrote about the case when it was argued before the ECHR last year. This is a link to the judgment issued by the Court.

The international LGBT press is reporting the case as a judgment by the ECHR that marriage for same-sex couples is not required under the European Convention on Human Rights.  That principle is referred to in the opinion, but it's hardly news; the ECHR made that pronouncement in a case two years ago.  This case was not about marraige.  The case posed a question similar to the one that US states have had to consider.  French law, like that in US states, says that adoption terminates the rights of the biological parent.  The only exception is for adoption by the parent's spouse -- stepparent adoption.  When US states have allowed second parent adoption, they have done so by reading such provisions as waivable by the parties when in the child's best interest or by allowing a joint adoption by the couple so that, in effect, the biological parent's parental status is terminated by the adoption but achieved at the identical moment, along with his/her partner, through adoption.  It's not surprising that a country with a civil code, like France, would read its statutes narrowly; that's what happens in civil code countries.

The child in the case was born to DuBois after unknown donor insemination in Belgium. France limits assisted conception to infertile heterosexual couples, so the couple went out of the country to conceive a child.  The ECHR ruled that DuBois and Gas did not face discrimination based on sexual orientation because an unmarried heterosexual couple would also be unable to complete an adoption.  But an unmarried heterosexual couple using donor insemination wouldn't have to complete a second parent adoption to both be parents, so the Court really seems to have missed what is discriminatory here.

I wrote here a year and a half ago about the status of second parent/joint adoption in Europe, based on the research by Dutch law professor Kees Waaldijk.  The ECHR ruling means that member nations can continue to decide for themselves when to recognize that a child has two same-sex parents.  This is a very disappointing outcome.

Wisconsin courts foil bio mom's attempt to overturn her partner's adoption of the children

Here is another "lesbian bio mom behaving badly" case, and another court --this time the Wisconsin Court of Appeals -- that does not let her get away with it.  (This case was decided in July, but I'm behind on some of my posts and I haven't seen it written about elsewhere).

The case name is Shelly J. v. Leslie W. Lesbian couple, Shelley and Leslie, began their relationship in 1996 and decided to have children together.  Shelly gave birth to one child in 2000 and another in 2002, using anonymous donor insemination.  The couple raised the children together.  Now comes the tricky part.  Many years ago, the Wisconsin Supreme Court ruled that Wisconsin adoption statutes did not permit a biological mother to retain her parental rights once the child was adopted by her partner.  In other words, it ruled that second-parent adoption was not authorized under Wisconsin law.  That case, In re Angel Lace M., did not decide whether two people of the same sex could jointly adoptly a child together.

So...Leslie and Shelly solidified their family as follows: Shelly voluntarily terminated her parental rights, and Shelly and Leslie petitioned to jointly adopt their two children.  The court granted the adoptions in 2004.  Seven years later, Shelly petitioned to set aside her voluntary termination of parental rights and the joint adoption, so she could go back to being the children's only legal parent.  She did this by arguing that the adoptions were not allowed under Wisconsin law.  She even argued that the two attorneys and the judge were working to "subvert the existing law to further a political agenda."

Well, the appeals court did not rule on whether this type of joint adoption is permissible in Wisconsin; there is still no appellate court decision on that question.  The appeals court told Shelly it was too late to make any such claim.  In applying the legal standard for undoing the previous judgments, the court specifically ruled that reopening the proceedings would not be in the children's best interests.  The two women had raised the children since birth, and the trial judge had emphasized that custody and visitation rights of both parents should be preserved.  Shelly made various arguments about whether the court that granted the adoptions had the power to do so, but the appeals court made clear that circuit courts in the state have subject matter jurisdiction to hear actions of any nature.  This of course is in stark contrast to the North Carolina Supreme Court ruling last year that no court in that state ever had subject matter jurisdiction to grant second-parent adoptions.  As a result of that ruling every second-parent adoption ever granted in North Carolina became invalid.

I'll note that this is the second time this year that a Wisconsin appeals court has said a bio mom was too late to challenge a proceeding in which she had participated.  In the earlier case, which I wrote about here, the court left standing a non-bio mom's parentage order.  But that court also ruled that such parentage orders were not permissible under Wisconsin law, cutting off such an avenue for solidifying parent-child relationships when a same-sex couple has a child together.  By not ruling one way or the other on the joint adoption proceeding used by Shelly and Leslie, lawyers, judges, and parents in Wisconsin are left in a state of uncertainty.  This is unfortunate. The trial judge had upheld the theory that two unmarried individuals can petition to adopt a child when that child's parental rights have been terminated.  Courts in other states with similarly-worded statutes have also allowed such joint adoptions.  It's a good legal theory that allows for a good result, and I hope trial judges in Wisconsin keep relying on it.

European Court of Human Rights hears appeal of lesbian couple denied second-parent adoption in France

A French lesbian couple, denied a second-parent adoption of the daughter born to one of them using donor insemination, has taken their case to the European Court of Human Rights (ECHR). The couple, Nathalie Dubois and Valerie Gas, began living together in 1989, and their daughter, Alexandra, was born in 2000. Alexandra was conceived in Belgium because assisted reproduction is not available to a lesbian couple in France. The hearing before the ECHR last week is available (with simultaneous English translation) on line.

The European Convention on Human Rights prohibits discrimination under Article 8 and protects family life under Article 14. The two articles together have been the basis for previous challenges. In 2008, the ECHR, in E.B. v. France, ruled in favor of a single lesbian who had been denied the ability to adopt because of her sexual orientation.

Arguing on behalf of the couple, attorney Caroline Mecary presented numerous legal consequences denied Alexandra because Valerie could not adopt her. She contrasted Alexandra's position to that which would be available had her mother had a male, rather than a female, partner. Under French law, an unmarried different-sex couple can both be the parents of a child born to the woman using donor insemination. (European countries, in general, are more likely than the US to treat unmarried and married heterosexual couples equally). Furthermore, French courts do recognize second-parent adoptions granted in other countries.

The attorney for the French government argued that the European Convention on Human Rights does not grant a right to adopt. She tried to reassure the court that Alexandra would be protected under various other French laws, including the fact that Valerie will be allowed to adopt once Alexandra becomes an adult, as French law allows adult adoption that adds a parent for a child.

She argued for distinguishing the E.B. ruling, but then never said how it could be distinguished. She also argued that marriage is the most protective environment for raising children. Lest we think that groups opposing gay and lesbian parenting exist only in the United States, an organization called the European Centre for Law and Justice, affiliated with its American counterpart, commented in a press release that this case is "the latest in a long series of attempts to attack the European common heritage, by introducing new anthropological, moral and social views." Some of France's arguments track precisely arguments here against same-sex marriage, notwithstanding the fact that this case concerns parentage not marriage.

Rob Wintemute, law professor at King's College, University of London, presented argument on behalf of the European region of International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and other organizations. He presented the ECHR information on the many countries/states that do permit a child to have two parents of the same sex. Most eloquently, he began his remarks as follows: "The strongest and most persistent prejudice against the lesbian and gay minority in Europe, is that they represent a threat to the welfare of children." He also urged the court not to adhere to a rigid one-mother/one-father model of family life.

The judges of the ECHR do not ask questions during argument but do ask them after all the lawyers complete argument. (The judges ask all their questions at once and then the lawyers respond.)

Tennessee adoption ruling bodes ill for same-sex couple second parent adoption

Court rulings that affect same-sex couples raising children often come in the context of heterosexual families. When you think about it, that's inevitable, since there are so many more heterosexuals and they, too, live in a variety of family forms. Well, a decision from the Tennessee Court of Appeals last month, In re Shleby L.B., falls into this category, and the news is not good. (For a Colorado ruling involving heterosexuals that bodes very well for same-sex couples there, read this post from last April).

A child, Shelby L.B., was born to a married heterosexual couple in 1999. When the couple divorced two years later, the child went with her mother and the father had no visitation rights but could petition for them in the future after completing alcohol and drug rehab. The mother later became friends with a 42-year-old man, J.E.N, who began acting as a father to the child when she was five years old. In 2008, the mother and J.E.N. filed a joint petition to terminate the parental rights of the father and allow J.E.N. to adopt the child. The petition alleged that the child called J.E.N., "Dad," and that he supported her financially and spent a substantial amount of time with her forming a parent-child bond. Shortly thereafter, the mother and J.E.N. filed an amended complaint including the fact that J.E.N. had exercised physical custody of the child for substantial times and that the child was presently living with him during the school week. There is no indication that the mother and J.E.N. ever lived together or that they had a romantic relationship.

The father hired a lawyer, opposed the petition, and asked for visitation with the child. Subsequently, he filed a motion to dismiss the petition, arguing that the parental rights of both parents must be terminated before anyone other than a stepparent can adopt a child. The trial court ruled in the father's favor, and the Court of Appeals affirmed.

Here are the Tennessee laws that doomed the petition filed in this case. A biological parent cannot file a petition to terminate the rights of another parent, so the mother could not file to terminate the father's rights. That left J.E.N. He could file an adoption petition, but according to the court's interpretation of the Tennessee statute, he could only do so if he were seeking to terminate the rights of the mother as well as the father. The only exception in the statute is for a stepparent adoption, and since the mother and J.E.N. were not married, he was not the child's stepparent.

This ruling likely dooms any second parent adoption. That's because, of course, the biological parent seeks to retain, not surrender, her parental rights when her partner adopts. The only remaining possibility might be a joint petition by a same-sex couple in which the bio mom gives up her rights as a bio parent but simultaneously gets them back as an adoptive parent. A single person may adopt in Tennessee, but it is not certain that the court would say this means two single persons may adopt together.

I wish we knew more about these people. I am curious about the relationship between the mother and J.E.N. There are plenty of examples of LGBT co-parenting arrangements between other than romantic partners. Since adoption requires individualized assessment of a child's best interests, I believe these arrangements should be able to be formalized through adoption. Plus I realize that I cannot even be certain the adults in this case are heterosexual. I know the mother was once married to a man, and I know there is nothing about her sexual orientation that is reported in the opinion, but it's not impossible that her friendship with J.E.N. is not sexual because one or both of them is gay. (It is also possible the two have a sexual relationship; all we know is that they are not married to each other and they appear not to live together). So I am curious, but in the end the issue should be whether the adoption is in the child's best interests, and that is what the court refuses to address because it says such an adoption is impossible.

This case is also a reminder that when we lose second-parent adoption it is not inherently an anti-gay ruling; it may simply be a narrow reading of an adoption statute. Since adoption customarily does terminate the rights of the existing parents, statutes were written in a way that produces that result automatically. When a court reads such a statute to prohibit a parent retaining rights while adding a second parent, that may simply be reluctance to construe a statute beyond its literal wording. Of course many state courts have read their adoption statutes broadly enough to encompass second parent adoption without terminating the first parent's rights. Thank goodness for that.

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month). The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them. This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son. The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents. The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support. These are cruel results.

I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am. There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

More conservative state supreme court judges could hurt LGBT family law

By now everyone knows that the three Iowa Supreme Court justices up for a retention election all lost their bids to remain on the court, the result of a coordinated, highly financed campaign to send a message against their vote for marriage equality. In a segment on Democracy Now this morning, Adam Skaggs of the Brennan Center for Justice puts the Iowa vote in the larger context of judicial elections across the country. His report on the funding of state court judges elections is a sobering look at both the present and the future.

There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts. I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.

Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.

It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.

This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.

Puerto Rico Supreme Court considering second-parent adoption

Columbia Law School's Sexuality and Gender Law Clinic has filed a friend of the court brief in AAR, a case pending in the Supreme Court of Puerto Rico. The partner of a biological mom was denied a second-parent adoption, and the court will rule on whether same-sex second parent adoption is permissible in Puerto Rico.

The brief is unique (and not only because it was filed in both English and Spanish). Here on the mainland, no litigant has argued a right to second-parent adoption grounded in norms of international human rights. According to the brief, however, Puerto Rico courts regularly incorporate international law and human rights principles into both statutory interpretation and interpretation of the Commonwealth's constitution. The brief surveys the status of second-parent adoption in other countries; considers rulings from such international tribunals as the European Court of Human Rights; and cites to United Nations and other international human rights documents.

According to a blog post about the case, Puerto Rico does allow second-parent adoption by different-sex parents.

North Carolina upholds second-parent adoption!

The South is the region with the worst laws in the country for gay and lesbian parents. Well today add North Carolina to the list of states that approve second-parent adoption.

Today's decision from the North Carolina Court of Appeals came in the case of Boseman v. Jarrell. Pretty straightforward facts: Julia Boseman and Melissa Jarrell had been together four years when, in 2002, Melissa gave birth to a child, conceived through donor insemination and planned for by both of them. The child called Melissa "Mommy" and Julia "Mom." The couple filed for a second-parent adoption, which was granted in 2005. As is common given state adoption statutes, the couple asked the court to waive the statutory provision that an adoption terminates the biological mother's parental rights. The court ruled that it had the power to do that, and the adoption decree specifically reads that it does not terminate Melissa's parental rights.

So far so good.

But the next year the couple split up, Melissa limited Julia's time with the child, and, in 2007, Julia filed an action for joint custody. Melissa then tried to get the court (in a different county from the court that granted the adoption) to rule that the adoption decree was void. The opinion released today holds that the adoption decree was not void. If it was an error to grant an adoption without severing Melissa's parental rights, that had to be raised on an appeal from the adoption decree; it could not be raised in a subsequent proceeding.

There's lots of good language in the opinion about why the adoption was a good thing, but the court's failure to rule definitively that a court can waive the provision terminating a biological parent's rights does leave the door open for some trial court judge in the state to rule that the law does not permit such waiver. What is clear, however, is that if a trial judge DOES grant a second-parent adoption, that adoption is valid and cannot later be challenged by anyone.

The court also makes clear that it would have ruled the same way had the parties been an unmarried different-sex couple. "While [the adoption code] does not specifically address same-sex adoptions," the court wrote, "these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s 'needs, interests, and rights.'"

The North Carolina Association of Women Attorneys, the National Association of Social Workers, the North Carolina Chapter of the National Association of Social Workers, and the North Carolina Foster and Adoptive Parents Association filed a friend of the court brief in support of upholding the adoption.