Settling a dispute between same-sex adoptive parents, a New Jersey judge says one can’t be prohibited from moving to a state hostile to gay marriage simply because the other fears impairment of his rights.
The Sept. 21 ruling, in A.G. v. R.R., BER-FM-02-2258-09, means that Anthony Galde can move to Georgia over the objections of Richard Rinko, with whom he adopted a child while they were living in New Jersey.
Although Georgia law apparently does not allow adoption by same-sex couples, Superior Court Judge Mary Thurber held that Georgia courts would be bound by the U.S. Constitution’s Full Faith and Credit Clause to enforce custody orders by New Jersey courts.
Even if a Georgia court disregarded the judgment of adoption, or if school or medical personnel in that state disallowed Rinko’s parental rights, he has a “safety net” because New Jersey courts have an interest in seeing their custody orders upheld, Thurber said, retaining jurisdiction over the matter.
Thus, if Rinko’s “worst fears are realized, and if the state of Georgia is hostile to his parental rights, he has a judicial remedy,” she wrote.
In 1997, New Jersey became one of the first states to allow joint adoptions by gay and lesbian couples.
In January 2004, Galde and Rinko adopted J.G.-R, then 13 months old, while they were living in New Jersey. The couple never entered into a domestic partnership or civil union.
After they separated, Galde, who was an ensemble cast member in the Broadway play “Wicked,” moved to New York City. The arrangement he and Rinko reached in June 2010 gave Galde primary custody and allowed him to move the boy to New York.
Galde, who was injured during a performance, stopped acting and sought permission from the court to take J.G.-R. to Atlanta, where he had a job offer with a television production company, Little Bean Family Entertainment.
After a trial in July, Thurber found Galde had shown a good-faith basis for the move: a career on the stage was no longer feasible and he could more effectively maximize his 25 years of experience in singing, dancing and acting away from New York.
Galde also testified that Georgia’s status as a “right to work” state, with fewer union restrictions, further enhanced his employment options there. He described Atlanta as a hub of television and film opportunities.
Rinko would get time with J.G.-R. every month, plus parts of school breaks as well as daily contact by telephone or Skype.
Rinko did not raise the “hostile state” objection until the eve of trial but Thurber said it deserved to be addressed.
“The issue of how secure the rights of gay and lesbian parents are when families, or part of them, cross state lines is receiving a growing level of attention from courts and legal scholars,” she wrote.
A 2004 amendment to Georgia’s constitution, upheld by its Supreme Court in 2006, prohibits same-sex marriage and recognition of such marriages contracted in other states.
Georgia does not explicitly prohibit same-sex couples from adopting, but Thurber read Georgia law as not permitting joint adoptions by same-sex couples or a same-sex partner’s adoption of his or her partner’s child.
She cited Bates v. Bates, a July 11 opinion by a Georgia appeals court that called it “doubtful” that state law recognized second-parent adoptions.
Thurber mentioned a split between federal appeals courts on the question of enforcing adoptions beyond state borders and referred to a decision raised by Rinko as cause for concern, Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), involving a New York same-sex couple’s adoption of a baby in Louisiana.
In Adar, the U.S. Court of Appeals for the Fifth Circuit held en banc that Louisiana authorities could refuse to provide a birth certificate because the state did not recognize adoption by unmarried parents.
Though acknowledging that Rinko had a valid concern, Thurber noted that he had not cited any case or example of a Georgia court refusing to recognize an out-of-state adoption.
The opinion was just made public, on Sept. 21, but Thurber decided the question on Aug. 9 and Galde has since moved to Atlanta. No appeal has yet been filed.
Rinko’s lawyer, Stephanie Cangialosi of Andalaft & Associates in Clifton, says she is glad the judge retained jurisdiction as a precaution but is not convinced it will suffice.
If Galde does not respect Rinko’s parental prerogatives, with the move already made, the damage is done, she says.
Madeline Marzano-Lesnevich, who represents Galde, says whether Georgia allows same-sex couples to adopt is not the issue, but rather whether Georgia would enforce New Jersey court orders. She is with Lesnevich & Marzano-Lesnevich in Hackensack.
Galde says he has not encountered a hostile environment in Georgia and laments that a parent who has gone to court and obtained a custody order has to worry about where he can move in the absence of an overarching federal law on same-sex adoptions.
According to the Human Rights Campaign, a Washington, D.C., gay-rights group, 18 states and the District of Columbia allow joint adoptions by same-sex couples and 18 plus D.C. allow second-parent adoptions.
Mary Pat Gallagher is a reporter for New Jersey Law Journal, a Legal affiliate