Thursday, May 8, 2003
High Court, in Case Spawned by Lesbians’ Breakup, Urged to Void Adoptions by Non-Marital Partners
From Staff and Wire Service Reports
The California Supreme Court was asked yesterday to nullify thousands of adoptions in which non-marital partners of birth parents, usually gays, have acquired legal custody of children.
Attorneys argued to the seven justices in San Francisco over whether state law authorized such “modified independent” adoptions. A decades-old state high court decision cited by advocates of the adoptions only applies to married couples, the attorney for a birth mother challenging an adoption by her ex-partner said.
The California Legislature has authorized adoptions for single parents and stepparents, and legislation effective Jan. 1 of last year allows adoption by the birth mother’s registered domestic partner under the stepparent procedure. But that legislation did not address the status of children whose parents went through the “modified” process before the law took effect, and the Fourth District’s Div. One ruled in October 2001 that the modified or “second-parent” adoptions were illegal.
The case concerns Sharon S., as she was identified by the Court of Appeal, who gave birth via artificial insemination in 1999. Her 10-year lover, Annette F., was to adopt the boy, just as she had adopted his older brother.
The couple split up while the adoption was pending and Sharon S. withdrew her consent to allow her former partner to adopt. Her attorney, John Dodd, told the court that his client’s consent was invalid to begin with because there was no law allowing for second-parent adoptions.
“It is not a consent authorized by the Legislature,” Dodd argued, adding that such adoptions were illegally “invented” by the California Department of Social Services.
Dodd won a ruling by a divided Court of Appeal panel. While state law makes express provision for stepparent adoptions, the majority said, other forms of adoption require that the biological parent relinquish custody.
Presiding Justice Daniel Kremer dissented, arguing that the trial judge correctly applied a 1925 California Supreme Court 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.
Justice Carlos Moreno wondered aloud yesterday about the consequences of Dodd’s argument.
“Wouldn’t this have a severe impact on tens of thousands of adoptions?” Moreno asked.
Justice Ming Chin asked whether there was anything in California’s legislative history that would “disapprove” of gays adopting children.
Judges in California, the first state to permit second-parent adoptions, began approving them in 1986. New York, Massachusetts and Vermont followed. Colorado, Ohio and Wisconsin forbid them.
Chief Justice Ronald George was skeptical of Dodd’s argument and suggested that it didn’t matter whether the parents were gay. George suggested that a so-called “liberal approach” permitting such adoptions satisfies “the best interest of the child.”
Joan Heifetz Hollinger, a University of California at Berkeley child-welfare legal expert, said in an interview that “this case does raise lots of clouds and shadows over the security of existing relationships.”
Parental rights involve a host of child-parent issues ranging from taxes, medical coverage and education to life insurance, Hollinger said.
“There’s enormous public policy behind children and their families relying on the belief that they are legitimate,” she said.
Annette F. declined comment outside the courtroom. Sharon S. was not available.
Annette F.’s attorney, Charles Bird, told the court that it was immaterial whether the parents were gay. He told the justices that trial judges approve adoptions only when it’s “in the child’s best interest.”
Judith Klein, the appointed attorney for the child at the center of the dispute, told the justices that there was no law at the time allowing Sharon S. to consent to the adoption. She added that allowing Joshua to be adopted into a torn relationship “subjects this little boy to major litigation for many years to come.”
Klein said if the law allowed for domestic partners to adopt in this manner, the Legislature didn’t need to include it such authority in the legislation.
Dodd suggested if the Supreme Court sides with him and nullifies the estimated 10,000 second-parent adoptions, the affected parents could commence new adoptions petitions under the new law.
Copyright 2003, Metropolitan News Company