Now you're a parent, now you aren't
A California procedure used by same-sex partners to become legal parents is declared illegal, a move that could invalidate thousands of adoptions.
By David Tuller
Nov. 28, 2001 | Lesbian and gay parents in California received a tremendous blow last month when an appeals court in San Diego determined that many of them might not, in fact, be parents at all. Ruling in the case of Sharon S., a lesbian and biological mom who sued to block her former partner from completing what is called a 'second-parent adoption,' the three-judge panel appeared to declare invalid an estimated 10,000 to 15,000 previously completed adoptions through which lesbians and gays in California have secured parental rights.
The same-sex adoption situation has never been entirely clear in California because the law does not explicitly outline a procedure that allows both partners in a lesbian or gay couple to be legal parents. But for the past 15 years, gays and lesbians whose partners already have children -- either through a biological relationship or an official adoption -- have become "second parents" thanks to a modified version of the state's standard adoption process.
Then, on Oct. 25, the 4th District Court of Appeal essentially ruled that second-parent adoptions contravened the law by not explicitly conforming to the procedure spelled out in state statutes. The ruling threw thousands of parents (or "parents"?) into a panic, notwithstanding the certificates of adoption that many of them have proudly cherished for years -- and not to mention the bonds of love binding them to the children in their care.
The court based its ruling on statutory language that assumes that birth mothers relinquish their parental rights when they consent to letting someone adopt their child. In its recent decision, the court noted that the California Department of Social Services had found a way to approve adoptions by unmarried partners by adding an amendment to adoption documents that allows a legal parent to declare an intention to retain rather than relinquish parental rights. But that procedure didn't satisfy the court -- even though the judges recognized in their decision that this outcome was exactly what Sharon S. and her partner initially had in mind.
"California adoption laws are not to be construed liberally [even] to protect the welfare of children," stated the majority opinion, signed by two of the judges. "The statute currently governing independent adoption mandates that the parental right of the birth parent be terminated, something that Sharon did not unequivocally agree to and that was never intended by either of the parties here."
The one dissenting judge blasted the majority opinion as "absurd" and reprimanded his colleagues for adhering to "an overly narrow construction" of state law. This judge, stressing that many adoptions concluded in good faith over the years were now subject to legal challenge, declared that the decision "does not exist in a vacuum" and that the "ultimate ... losers will be children who are the intended beneficiaries of California's adoption laws."
The court majority attempted to minimize the impact of its ruling by noting that, for many of the parents affected, a remedy will soon exist. This fall, California Gov. Gray Davis signed Assembly Bill 25 which, beginning in January, will grant gay and lesbian domestic partners a number of key rights, including the right to pursue "step-parent adoptions" of their partners' children. Unlike second-parent adoptions, the step-parent procedure is clearly spelled out in adoption statutes and could not -- presumably -- be subject to legal challenge when used by parents of the same sex. (Until enactment of the new law, only spouses will be allowed to become official step-parents.)
But the appellate court failed to note that the option of step-parent adoption is not available to same-sex couples that have moved out of state or have already split up, whether amicably or not. It also would be of no help to families in which the biological parent has died and the non-biological parent -- of now-questionable legal status -- has expected to retain custody.
The decision has been appealed and so has no immediate practical impact. The losing party to the suit has requested the appellate court review its ruling, and, regardless of what the lower court decides, the case will undoubtedly be appealed to the California Supreme Court. Meanwhile, gay rights supporters in the California Legislature plan to introduce a bill that would reaffirm the validity of all past second-parent adoptions.
But whatever the practical implications turn out to be, says Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco, the immediate psychological impact on lesbian and gay families has been profound. Kendell recently spoke to Salon about the ruling -- not just as a civil rights advocate but also as the non-biological mother of a 5-year-old boy.
What was your reaction when you first heard about the ruling?