By Marcia Coyle, From The National Law Journal

An Alabama Supreme Court’s refusal to recognize a lesbian’s nearly decade-old adoption in Georgia of three children may draw the U.S. Supreme Court for the first time into the rights of gay and lesbian parents.

The justices on Monday put on hold the Alabama Supreme Court decision that would take away the woman’s adoptive rights to the children she had been raising with her former lesbian partner of nearly 17 years.

Granting an emergency stay of a lower court decision generally indicates that at least five justices see some merit in the legal arguments being raised. The high court’s stay in the case, V.L. v. E.L., will remain in place until the justices act on a petition for review. (“V.L.” is the adoptive mother in the former couple.)

The high court case stems from a child custody dispute. Although the justices are generally reluctant to step into domestic law matters, the adoption case raises a constitutional question: an alleged violation of the full faith and credit clause, which requires states to respect out-of-state court judgments.

The Alabama court’s decision is the first not to recognize another state’s same-sex parent adoption order based on a disagreement with the how the court issuing the adoption (in Georgia) interpreted its own laws, according to the National Center for Lesbian Rights, which is participating counsel in the case.

Even though roughly 20 states permit so-called “second-parent” adoptions by gay and lesbian couples, some states, including Alabama, continue to bar them or raise obstacles. And although the V.L. case would not turn on the U.S. Supreme Court’s landmark same-sex marriage ruling last term in Obergefell v. Hodges, that decision has influenced, or made it easier in some states for same-sex couples to overcome those bars and hurdles, say some lawyers.

In fact, one of the four cases decided by the high court’s June ruling in DeBoer v. Snyder initially involved a Michigan lesbian couple’s challenge to that state’s ban on adoption by same-sex couples. Michigan law restricted second-parent adoption to married opposite-sex couples.

And in Obergefell, the 5-4 majority led by Justice Anthony Kennedy expressed strong concern for the children—adopted or not—of same-sex couples denied the rights and privileges of marriage.

The Alabama justices nullified the Georgia adoption order that in 2007 granted the non-biological parent, identified as V.L., status as an adoptive parent to the couple’s children. The first child was born in 2002, and twins were born in 2004. The woman’s partner was the biological mother. V.L. adopted the couple’s three children with her partner E.L’s consent.

Although the family lived in Alabama, the couple believed Georgia was more likely at the time to approve the adoption and so they rented a home in Atlanta to pursue the adoption.

Several years later, the couple separated and the child custody dispute arose. The biological mother fought V.L.’s visitation request and argued that the adoption order was invalid in Alabama. V.L. sought joint custody in Alabama circuit court based on her status as adoptive mother. That court and the state court of appeals ruled that the Georgia adoption order must be honored.

However, the Alabama Supreme Court reversed, finding that Georgia’s adoption law barred V.L. from adopting the children eight years earlier unless E.L. had relinquished her own parental rights, which she did not do. It held it could not give full faith and credit to the Georgia adoption order.

The children’s guardian ad litem supported V.L. in the state courts. The American Academy of Adoption Attorneys and the Georgia Council of Adoption Attorneys also filed a state court brief supporting the adoptive mother.

In her high court petition, V.L.’s counsel, Jenner & Block’s Adam Unikowsky, tells the justices, “The Alabama Supreme Court’s decision not only has effectively stripped the parental rights of V.L., but also places at risk numerous other families in which parents have relied on the stability of adoption judgments issued by the courts of sister states.”

Unikowsky calls the Alabama ruling a “grievous misinterpretation of the Full Faith and Credit Clause” with “far-reaching practical consequences.”

Arguing against the emergency stay, E.L.’s counsel, S. Kyle Duncan of Washington, D.C.’s Duncan, told the justices that the Alabama Supreme Court correctly found that the Georgia court had no authority to award the adoption to the lesbian couple.

“Here, V.L. convinced a Georgia court to award her a type of adoption plainly barred by the Georgia adoption statutes—i.e., an adoption on behalf of a non-spouse that leaves intact the rights of the existing parents,” wrote Duncan.

He also contends that the adoptive mother did not have the “clean hands” necessary to get the emergency stay.

“The record shows that the parties’ domicile in Georgia was a fiction designed solely to confer jurisdiction on a Georgia court that the parties calculated would be amenable to a non-spousal adoption that leaves intact the biological mother’s rights,” he told the justices. “The Court should not award equitable relief based on an adoption decree obtained by such transparent jurisdictional gamesmanship.”

But V.L.’s Alabama trial counsel, Heather Mann of Birmingham’s Boyd, Fernambucq, Dunn & Fann, said there was no way in 2007 in Alabama for V.L. and E.L. to accomplish an adoption of their children. “And there’s still no mechanism for second-parent adoption today,” she added.

Now that same-sex marriages are legal, she said, some Alabama judges are permitting those adoptions under the rubric of “step-parent” adoptions. “It’s really a misnomer,” explained Fann. “It’s not a step parent. But we don’t have any other mechanism.”

The Williams Institute at UCLA reports that an estimated 65,000 adopted children live with gay or lesbian parents.

E.L. has until Dec. 29 to respond to V.L.’s petition for review. Under that schedule, the high court could consider the petition by mid-January, still time to hear the case this term if review is granted.

IMAGE: The Heflin-Torbert Judicial Center in Montgomery, Alabama, where the Alabama Supreme Court sits. Photo: Chris Pruitt via Wikimedia Commons

For more on this story go to: http://www.nationallawjournal.com/id=1202744830324/Justices-Step-Into-Dispute-Over-Parental-Rights-of-SameSex-Couples#ixzz3uOwFeOaf