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.

Published November 28, 2001 8:32PM (EST)

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?

My blood ran cold. I had a sense of panic and disbelief, coupled with the first palpable fear that I'd ever really felt as a lesbian parent. The idea that a right that has been so much a part of the California legal landscape could be imperiled like that was a devastating realization.

I was not worried that my own relationship with my son was jeopardized, because my partner and I are still together and we're planning on having another child in a few weeks. This is our family, and I knew I was lucky to be in a situation where, even with judicial permission, my partner was not going to do anything to diminish my legal relationship with my son Julian, because she honors that relationship.

There's nothing that you could take from me that would be more important to me than my relationship with my child. The fact that our relationship is legally recognized provides me -- and him -- with a level of security and responsibility and protection that is commonplace for a child who has heterosexual parents.

And after the immediate sense of panic subsided?

My panic was very quickly replaced by anger and indignation, which has actually not left since that moment. The decision, if permitted to stand, appears to suggest that second-parent adoptions previously granted in the state of California are invalid. In other words, the potential exists for any third party -- the Social Security Administration, an insurance company, a former partner who is the biological parent -- to use this decision to challenge the validity of the adoption.

I know I'm a good parent, and I know my son and I have a wonderful and mutually rewarding relationship. I don't need anyone to tell me that, and I don't care about their approval. What I do care about is that I have a decree from a court which recognizes that I am a legal parent, and for this court to suggest that this decree is vulnerable betrays a kind of arrogance and insensitivity that is not fitting for a judge.

The decision seemed to me to be purposefully hurtful and ignorant of the damage that the court was potentially inflicting, not even caring about the fact that these are loving, nurturing relationships that we have with our children, not acknowledging that these relationships were entitled to even the barest level of legal protection. That was the most insulting aspect of the court's decision.

How do you react to this as an advocate for lesbian and gay rights?

Well, there's a way in which LGBT [lesbian, gay, bisexual and transgendered] people become somewhat acclimated toward understanding and dealing with our legal marginalization, and we come to tolerate, if not obviously accept, the fact that our sexual orientation leaves us without many of the benefits and the security that other folks get to take for granted.

But this decision, rather than simply reinforcing that principle -- which is a principle I know and live with every day -- upped the ante by saying, in effect, "Not only are you subject to discrimination in marriage, social status, in federal protections, in other areas, but even on issues that are settled law you cannot rest easy." And even on issues where the decisions would do enormous damage to families and children -- that's a damage that the court is willing to inflict.

It's important to get the message out that people should not panic, and we are fully confident that this decision will not stand. But the fact it was rendered at all is astonishing. Even to a family like mine with relative security and where the couple is together, a risk still exists. For example, if my partner were to die, it's a theoretical possibility that some other family member could challenge me for custody of Julian and challenge the legal recognition of my relationship with him. Or if I had died on my recent plane trip back from Minnesota, it is a theoretical possibility that the Social Security Administration would have refused to pay any survivor's benefits to my son.

Is this an unusual step for a court to take in ruling on adoptions?

It's unprecedented to retroactively apply a ruling so as to invalidate a whole class of previously authorized and legally binding adoptions -- and there's a reason for that. The fact is that, perhaps more than any other body of law, adoptions are considered sacrosanct, and once granted they are not set aside, except under the most extreme circumstances, usually fraud.

The appellate court's position is that these adoptions never should have been granted in the first place because the process is not explicitly authorized by the statutes. Let's assume, for the sake of argument, that this position is correct. Courts are often faced with that kind of an argument and in fact they may find that argument to be persuasive. And it would be perfectly legitimate for the court to say, "Go and sin no more, you can't do more of these."

But the fundamental legal principle in all adoption law is promotion of the child's best interests. And you can read every page of that decision, and you will never find the words "a child's best interests." The judges could have been writing about patent law or a zoning dispute.

In fact, in other states like Illinois, New Jersey and Massachusetts, courts looked at their statutory schemes and also found that second-parent adoptions weren't explicitly authorized. But then they looked to the primary principle of what is in the child's best interests and found that the adoption must be allowed to proceed. Rigid statutory construction is always a secondary consideration to a child's interests.

So was this ruling completely unexpected?

We'd heard about the case a year ago. And we were concerned that the court might henceforth prohibit courts from granting second-parent adoptions. But our concern was never that the court would invalidate previously granted adoptions. I was one of the primary people who said, "Oh, they would never do that." I would have bet my house on it, because the fundamental principles are so strong and the countervailing chaos is so enormous that it never occurred to me that a rational court would rule that way.

So when you and other attorneys did these adoptions, you never felt they were at risk?

No, never. In some other states, like Colorado and Wisconsin, courts have ruled that second-parent adoptions were impermissible, and the court said, "You can't do them anymore." But in those cases the court did not suggest that previous adoptions should be rendered invalid.

The thing that's very troubling about the case is that Sharon S. had many other options that she could have taken. Even assuming that she wanted to challenge the validity of the adoption, she could have done that and limited her argument to her specific facts. The fact that she chose a win-at-all-costs strategy, even if it meant doing damage to thousands of families in California, betrays a level of narcissism and selfishness that is beyond the pale.

What about the fact that the court suggested a remedy under the new legislation that goes into effect in January?

To suggest that that's an actual remedy is ludicrous because for many couples it will not be. They've moved out of state, they've split up, the biological parent has died. And it remains to be seen how someone adopts their own child. I've already got a decree that says I'm a parent. Now I'm going to file to be a parent all over again? If so, I want my money back for when I did my second-parent adoption. I want the state to pay me back my legal fees and my fee to the Department of Social Services. That could be $3,000 to $5,000 per couple.

This ruling has no precedent in other states, but are you concerned that it might have an impact?

Yes, because there are states where second-parent adoption is still an open question. Certainly having California invalidate second-parent adoptions would not bode well for other states that would be addressing this issue. Even if a case is based on state law and cannot be used as a precedent in other states, California is viewed as a trendsetter in these kinds of social issues, so a ruling like this can certainly influence judges elsewhere, especially in more conservative states.

By David Tuller

David Tuller is a contributing writer at Salon. He is the author of "Cracks in the Iron Closet: Travels in Gay and Lesbian Russia."

MORE FROM David Tuller

Related Topics ------------------------------------------

Adoption Gay Marriage