Originally published on Advocate.com August 06 2003 12:00 AM ET
The California supreme court ruled Monday that a birth mother could not try to prevent her lesbian former partner from adopting a child the two women had planned to raise together. Gay rights organizations immediately hailed the ruling as one that bolsters the validity of some 10,000 existing "second-parent" adoptions, cases in which a nonmarital partner adopts a birth parent's child. Such adoptions are common among gay couples who decide to raise children together but for whom marriage is not an option. "By affirming second-parent adoptions, the California supreme court remedied a terrible lower court decision that had jeopardized the security of thousands of children with same-sex parents," said Kate Kendell, director of the National Center for Lesbian Rights. "This decision ensures that California law strengthens, rather than destroys, family bonds."
The state's high court voted 6-1 to overturn the appellate court's decision upholding the birth mother's right to terminate an adoption initiated by her former partner. The plaintiff in the case, a San Diego woman identified in court papers as Sharon S., is the birth mother of two children conceived through artificial insemination while she was in a committed relationship with Annette F. By mutual consent of both women, the first child, 6-year-old Zachary, was adopted by Annette F. without Sharon S. having to give up her parental rights. The couple initiated proceedings to do the same with the second child, Joshua, who is now 3 years old. But the couple's relationship turned volatile, and Annette moved out of their home in August 2000 while the adoption was pending. Sharon S. subsequently moved to terminate the family court action.
While the state's high court remanded the case on Monday to the court of appeal for further proceedings, it did not rule on whether the adoption of the younger child is in his best interest. This is often the deciding factor in many adoption cases. "We're obviously displeased with the outcome and further shocked that the court went so far as to preapprove any adoption by anyone as long as some
superior court judge thinks it's in the child's best interest," said John Dodd, Sharon S.'s lawyer. Dodd said he would file for a rehearing of the constitutional issues raised in the opinion. He also blasted the ruling for leaving open the possibility of households with more than two parents. "It holds out the possibility that there could two, three, four, or 72 parents. There is no limit," Dodd said.
Attorneys for the birth mother had argued to the seven justices that there was never any law on the books authorizing such adoptions. California's adoption laws stemmed from an 80-year-old state supreme court decision that dealt with married couples, lawyers said. A San Diego family court mediator initially recommended that Sharon S. and Annette F. share custody and that Annette receive specified visitation rights. But Sharon asked the court for approval to withdraw her consent to the adoption,
alleging it had no legal basis and that her permission was obtained through fraud or duress. Judges in California, the first state to permit second-parent adoptions, began approving them in 1986. New York, Massachusetts, and Vermont were next to adopt the practice. Colorado, Ohio, and Wisconsin forbid them.
Writing for the majority, Associate Justice Kathryn Mickle Werdegar held that "second-parent adoptions offer the possibility of obtaining the security and advantages of two parents for some of California's neediest children." Werdegar also stressed the importance of providing legal protections and stability for children born to same-sex and other unmarried couples. "Unmarried couples who have brought a child into the world with the expectation that they will raise it together and who have jointly petitioned for adoption should be on notice that if they separate, the same rules concerning custody and visitation as apply to all other parents will apply to them," she wrote.
In dissent, Associate Justice Janice R. Brown criticized the majority for "trivializing family bonds" and subscribing to "the-more-parents-the-merrier view of parenthood." Brown wrote that it was wrong to approve an adoption in which the parents lived apart. "The all-encompassing nature of parenthood renders eminently reasonable any legislative provision requiring that adopting parents share a common residence with each adoptive child. Parenthood requires more than a telephone and a checkbook." Brown is reportedly on President Bush's short list of potential nominees for a seat on the U.S. Supreme Court.