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Tuesday, November 24, 2015

E.L. v. V.L.

A cert petition was filed last week in a very interesting case. A few states recognize—whether by statute or case law—second parent adoption, which allows a second parent of the same gender as the biological parent to adopt a child without terminating that parent’s parental rights. As you can imagine, this is very useful for same-sex parents who want to be both recognized as the parents.

In the case, Georgia had allowed a second parent adoption by a same-sex partner, even though Georgia’s second parent statute at the time required a marriage between the prospective adoptive parent and the biological parent (this was pre-Obergefell, so the parties did not have the choice to marry). Otherwise, the biological parent would have to terminate  parental rights for an adoption to proceed. 

Now, after breaking up, the women are fighting over visitation in the state of Alabama, and the Alabama Supreme Court is refusing to recognize the second parent adoption that happened in Georgia, on the grounds that Georgia misapplied its own adoption statute by allowing a second parent adoption to proceed despite the lack of a marriage.

The constitutional problem, of course, is that the Full Faith and Credit Clause requires state courts to recognize each other’s judgments. There is, however, a narrow exception to the Full Faith and Credit Clause: a court need not grant Full Faith and Credit to a judgment issued by a sister state court that lacked jurisdiction. This is where the Alabama Supreme Court hangs its hat: by granting a second parent adoption when there was no marriage, the Georgia court lacked subject matter jurisdiction.

Of course, there are other arguments besides Full Faith and Credit—for example, the need for finality of adoption decisions and the child’s best interests to have a parent legally recognized if the parent raised the child (especially for visitation purposes).

It’ll be interesting to see whether the U.S. Supreme Court will want to hear this case, and if so, whether it will serve as a proxy for the same-sex adoption issue.

Posted by Margaret Ryznar on November 24, 2015 at 11:40 AM | Permalink


Ah, got it. Will have to look up those old Prawfsblawg posts too. Thanks.

Posted by: Margaret Ryznar | Nov 30, 2015 5:02:09 PM

Yes, the lower court opinion has added context if one knows about the membership of the Alabama Supreme Court & their past actions in this context including an opinion reaching out to hold same sex marriage is not protected as in was pending in front of the U.S. Supreme Court was examining the question earlier this year. This blog had some analysis as events were ongoing.

The court chose a technical approach while a concurring opinion went the more "hot button" route.

Posted by: Joe | Nov 30, 2015 9:35:40 AM

Roy "Obergefell is Worse than Dred Scott [1]" Moore once wrote a letter to the governor, asking him to continue recognizing Alabama's SSM ban after a Federal Judge had ruled it unconstitutional: http://www.al.com/news/index.ssf/2015/01/alabama_chief_justice_roy_moor_1.html

He also claimed (claims?) that SCOTUS rulings are purely advisory until the period for rehearing has passed: http://www.al.com/news/index.ssf/2015/01/alabama_chief_justice_roy_moor_1.html


Posted by: Pranav | Nov 30, 2015 7:23:02 AM

I'm not familiar with that bench at all, but you're right that it's surprising that everyone signed on.

Posted by: Margaret Ryznar | Nov 30, 2015 3:17:30 AM

I fully expected the opinion to have been written by More. Surprisingly, it was per curiam.

Posted by: Pranav | Nov 25, 2015 6:13:54 AM

Luckily for us, we don't need to figure out in this case what it means for a state court of general jurisdiction to lack subject matter jurisdiction, because the Georgia statute actually gives the superior court exclusive jurisdiction in all matters of adoption.

Posted by: Margaret Ryznar | Nov 25, 2015 4:40:04 AM

Yes, the two really got conflated here.

Posted by: Margaret Ryznar | Nov 24, 2015 4:06:45 PM

In the case of a state court of general jurisdiction what does it mean to lack subject matter jurisdiction? Is the inquiry the same as asking whether it was a judicial act in the judicial immunity context?

Posted by: Brad | Nov 24, 2015 4:05:40 PM

The problem with SCoAl's decision--clearly not limited only to federal courts--is that the absence of a marriage means the decision granting the adoption is wrong on the merits, not that the issuing court lacked S/M/J.

Posted by: Howard Wasserman | Nov 24, 2015 1:23:56 PM

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