Cynthia Wright, left, and Amy Brooke Saul, right, of Boyd Collar Nolen & Tuggle. ()
Same-sex couples that allowed a partner to legally share parenting rights through second-parent adoptions prior to the landmark U.S. Supreme Court Obergefell v. Hodges decision that legalized same-sex marriage can now expect all states to honor those adoptions. This assurance comes thanks to a U.S. Supreme Court ruling March 7 that reversed the Alabama Supreme Court’s refusal to recognize a second-parent adoption decree granted in Georgia.
The per curiam summary disposition opinion came in V.L. v. E.L., where the parties were two Alabama women who were in a relationship from approximately 1995 to 2011. E.L. gave birth to one child in 2002 and twins in 2004, and the couple raised the children together, eventually agreeing that V.L. should adopt them. The couple then rented a house in Alpharetta and filed an adoption petition in Fulton Superior Court. E.L. gave express consent to the adoption while not relinquishing her own parental rights, and the court granted the adoption in 2007.
The couple moved back to Alabama and in 2011 they ended their relationship. V.L. later alleged that E.L. interfered with her parental access to the children and she filed suit to obtain custody and visitation rights. Her request was granted by the Circuit Court of Jefferson County, Alabama. E.L. appealed and the case eventually reached the Alabama Supreme Court, which held on Sept. 15, 2015, that the Georgia adoption was invalid and that Alabama courts were not required to accord full faith and credit to the Georgia court’s action.
Why Alabama Negated Georgia
The Alabama justices explained in their per curiam opinion that the Fulton County Superior Court lacked subject matter jurisdiction under Georgia law to allow the adoption. Lack of subject matter jurisdiction provides an exception to the U.S. Constitution’s Full Faith and Credit Clause requiring states to recognize the judgments of courts in other states.
While the Alabama high court’s majority decision relied on the court’s analysis of subject matter jurisdiction, one justice went on the record with his bias against adoptions by same-sex couples. In a separate concurrence, the justice wrote that the state has “a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother.”
Georgia adoption statutes do not specifically allow (or forbid) unmarried couples, whether same-sex or opposite-sex, to adopt children together. Prior to the June 26, 2015, Obergefell decision, same-sex couples in Georgia sometimes were able to obtain “second-parent” adoptions, which judges treated like stepparent adoptions.
Even though second-parent adoptions are not codified by statute in Georgia, some judges have granted these adoptions for many years, and the Georgia appellate courts have remained silent as to the legality. In the 2012 decision Bates v. Bates, the Georgia Court of Appeals was given an opportunity to address the legality of second-parent adoptions, but instead side-stepped the issue while upholding a second-parent adoption, entered in Fulton County, on the grounds of res judicata and collateral estoppel.
Georgia Jurisdiction Upheld
While the Georgia appellate courts have remained silent as to this issue, the U.S. Supreme Court saw no ambiguity in a per curiam summary disposition opinion that relied on the Full Faith and Credit Clause. The court cited Georgia law that says “the superior courts … have exclusive jurisdiction in all matters of adoption.” The high court said other states cannot second-guess adoption decisions by Georgia courts.
Now that same-sex couples have the right to marry, they have the option of step-parent adoptions, which are codified in Georgia law. Still, many same-sex couples, just like opposite-sex couples, will continue to form relationships and have children outside of marriage, and they now have assurances that a legally granted adoption cannot be undone by a court in another state.
Other Issues Still Unresolved
We can anticipate a variety of other same-sex relationship and family issues to arise as we continue to navigate family law post-Obergefell. For example, how will a court determine custody in a same-sex divorce action? Will there be a presumption in favor of a biological parent?
How will a court determine property issues that rely upon the date of the marriage in making a determination? Georgia law allows for assets acquired during the marriage to be deemed “marital” and thus subject to equitable division. But in same-sex relationships that were formed before marriage was available, property rights are governed by title. As a result, property jointly accrued during such a relationship isn’t subject to equitable division.
If a same-sex couple marries today, when does their marital estate begin to accrue? Does it accrue on the date of their legal marriage in Georgia? Could a discretionary date be determined based on when the marriage could have occurred, but did not because it was not permitted by law?
In addition to property division, the date of marriage will likely be a factor in reviewing claims for alimony. Or alternatively, the court may look at the length of the relationship in making an alimony determination.
Despite the landmark Obergefell decision and the high court’s clear statement on the recognition of adoptions, same-sex family law is still evolving. The appellate courts will continue to provide direction as same-sex families confront new issues in their relationships.