Full Faith and Credit for Adoption

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Category: Family Law, Public
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On Monday, the United States Supreme Court issued a summary disposition reversing the judgment of the Alabama Supreme Court in V.L. v. E.L. (577 U.S. ___ (2016)) In that case, two women had been in a committed relationship with each other for over 15 years. While they were together, E.L. gave birth to three children through assisted reproductive technology, and she and V.L. raised the children together. At some point thereafter, V.L. formally adopted the children in Georgia, with the express consent of E.L. who retained her own parental rights. The Georgia court entered a final decree of adoption recognizing both women as parents to the children.

In 2011, V.L. and E.L. split up while living in Alabama, and shortly thereafter V.L filed a petition in circuit court alleging that her former partner was denying her access to the children. She asked the Alabama court to register the Georgia adoption, and to grant her some custody or visitation rights. The circuit court granted visitation, and E.L. appealed, claiming that Georgia lacked subject-matter jurisdiction to enter the decree of adoption. The Court of Civil Appeals rejected the jurisdictional argument, but did remand the case with directions to the family court to hold an evidentiary hearing before awarding visitation rights to V.L. The Alabama Supreme Court reversed, holding that Alabama was not required to accord full faith and credit to the Georgia judgment because Georgia did not have subject-matter jurisdiction to allow V.L. to adopt the children while E.L retained her parental rights.

In its per curiam opinion reversing the Alabama Supreme Court decision, SCOTUS emphasized that states are required to afford full faith and credit to a judgment unless that judgment was rendered by a court that “did not have jurisdiction over the subject matter or the relevant parties.” Although a court can look into whether a foreign court had jurisdiction, jurisdiction is presumed if the judgment is one of a court of general jurisdiction, and the presumption cannot be rebutted simply because a foreign court disagrees with the outcome of a case.

Indeed, disagreement with the Georgia court’s interpretation of Georgia law seems to have been what drove the Alabama Supreme Court to refuse full faith and credit to the Georgia adoption decree. The Alabama Supreme Court interpreted Georgia law as precluding adoption by the same-sex partner of a natural mother who still retained her own parental rights, then concluded that this did not go to the merits of the case, but rather to the subject-matter jurisdiction of the Georgia court. It is perhaps unsurprising that the Alabama Supreme Court would take an expansive view of its power to declare that another court did not have jurisdiction, given that its Chief Justice Roy Moore has declared SCOTUS’s decision in Obergefell v. Hodges (135 S.Ct. 2584 (2015) (the 2015 case granting the right to marry to same-sex couples) to be invalid because, in his view, the U.S. Supreme Court was “without constitutional authority” to issue it. In V.L. v. E.L., the Alabama court’s somewhat convoluted argument seems to have been that since Georgia law required its adoption statutes to be strictly construed in favor of the natural parents, and since the Alabama court did not think the Georgia court had in fact strictly construed the statute, the Georgia court did not have subject-matter jurisdiction over the case. But as SCOTUS points out, the language of the adoption statute does not speak in jurisdictional terms, and statutes do not become jurisdictional simply because they must be strictly construed or are mandatory. Moreover, Georgia law grants exclusive jurisdiction in adoption cases to its superior courts, period.

The fact is, many states including Wisconsin have had adoption statutes similar to the Georgia statute, which states “that a child who has any living parent or guardian may be adopted by a third party…only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.” Moreover, these statutes have often been interpreted so as to prevent same-sex partners from adopting each other’s children, even if the children were being jointly raised by both partners. On their face, these statutes do not discriminate against same-sex couples, because they preclude any third party from adopting a child while one of that child’s parent’s retains parental rights. For an unmarried heterosexual couple, the solution to this problem has been to get married, because most statutes have exceptions allowing second parent adoption by spouses of a birth parent. But until 2015, when Obergefell v. Hodges granted the right to marry to same-sex couples, there was no way for a same-sex partner acting as a parent to protect her continued relationship with the children if the partners separated in a state that did not allow same-sex marriage. During the time period when V.L. formally adopted the children in Georgia, same-sex partners could not marry there, and second parent adoptions were granted only by some – but not by all – of the superior courts empowered to issue adoption orders. Different judges simply implemented different interpretations of the statute, with some interpretations being more responsive to the plight of second parents than others. Still, as SCOTUS pointed out, no appellate court in Georgia has ever interpreted the adoption statute as jurisdictional. Different judgments handed down by judges with differing interpretations of the statute are all entitled to full faith and credit.

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