Tuesday, March 2, 2004
U.S. Supreme Court Stays Out of ‘Second-Parent’ Adoption Issue
From Staff and Wire Service Reports
The Supreme Court yesterday declined to review a California law high court decision permitting “second-parent” adoptions in which the birth parent’s non-marital partner may adopt a child without the natural parent relinquishing parental rights.
Justices declined without comment to get in the middle of a child custody fight between a San Diego woman and her former lesbian partner. The women were raising two children together, but then separated.
The state high court last August rejected an attempt by the birth mother, identified as Sharon S., to prevent her former partner from adopting one of the children. That ruling was cheered by gay rights organizations as bolstering California’s 10,000 existing second-parent adoptions, which many states still do not allow.
Assembly Bill 25, which was signed into law by then-Gov. Gray Davis three years ago, explicitly permits members of same-sex couples who register as domestic partners to adopt their partners’ children, using the same procedures applicable to adoption of stepchildren.
But advocates feared that the validity of second-parent adoptions that took place before AB 25’s Jan. 1, 2002 effective date would be thrown into doubt if Sharon S. prevailed.
John Dodd, the birth mother’s lawyer, said her constitutional rights would be violated if an unrelated person is allowed to adopt her child over her objections. “This case carries serious public consequences,” Dodd said in his petition for certiorari.
Attorney Charles Bird, who represented Sharon S.’s former partner, Annette F., said Sharon S. had consented to joint custody with his client and did not withdraw her support in time.
“Bluntly, one can view this record with an imaging satellite, an electron microscope, or anything in between, and never find a hint of a constitutional attack on the 90-day limit for revoking consent,” Bird wrote in his response to the petition.
The two women were classmates at Harvard Business School, became involved in an often-volatile relationship in 1989, and moved to San Diego the following year, according to testimony. While they were together, Sharon S. had two children through artificial insemination using sperm donated by the same anonymous man.
The first child, Zachary, was born in October 1996. The two women completed a second-parent adoption the following year.
The second child, Joshua, was born in June 1999. A second-parent adoption petition was filed in September of that year, but the couple separated while the petition was pending.
After attempts at mediation failed, Annette F. began legal proceedings to have herself declared the co-parent of Joshua and to obtain custody of both boys. Sharon S. responded that her consent to the adoption of Joshua was the result of fraud and duress and sought to have the adoption proceedings dismissed.
San Diego Superior Court Judge Susan Hugenor, however, ruled that Annette F. could continue to seek a “modified” independent adoption, meaning that both women would be deemed the child’s parents.
The county Department of Social Services, citing the close relationship between Annette F. and Joshua, urged the court to approve the adoption. The judge approved visitation and denied Sharon S.’s motion to dismiss the proceeding.
The Fourth District Court of Appeal ruled that California law does not permit second-parent adoptions. While state law makes express provision for stepparent adoptions, the panel said, all other forms of adoption require that the biological parent relinquish custody.
But Justice Kathryn M. Werdegar, writing for the state high court, said that Family Code Sec. 8617, the statute cited by the Court of Appeal, could be waived in order to accomplish a second-parent adoption. To hold otherwise, the jurist said, would be contrary to precedent, and to the principle that the adoption statutes should serve the best interests of children.
Werdegar said the trial judge correctly applied a 1925 ruling allowing a woman to “re-adopt” her natural children after her ex-husband, who had adopted the children during their marriage, surrendered the adoption as part of the couple’s divorce.
The stepparent adoption law was designed to streamline the procedure in those cases, Werdegar said, and does not “expressly nor impliedly bar an independent adoption by a second parent that preserves the child’s legal relationship with one birth parent.”
Copyright 2004, Metropolitan News Company