An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
Last week, Alabama’s appellate courts released an unusually high number of opinions. As such, we decided to divide the Orphan-Law Update into two parts. Click here for Part 1.
One of the most bizarre cases of the week is E.L. v. V.L., 2130683 (Ala. Civ. App. February 27, 2015), wherein the Civs, on a per curiam opinion, upheld the legitimacy of an unlawful grant of adoption in Georgia to a homosexual partner.
E.L. and V.L. were homosexual women who were engaged in a relationship from 1995 to 2011, and during the course of their relationship, E.L. gave birth to three children through the use of assisted reproductive technology. In May of 2007, the Superior Court of Fulton County, Georgia granted V.L.’s petition for adoption, while foregoing termination of E.L.’s parental rights (which would normally occur in an adoption outside of a marriage relationship).
Sometime after E.L. and V.L. moved to Alabama, they apparently had a falling out. E.L. then began to exclude V.L. from the children’s lives. Subsequently, V.L. asked the trial court to “register the Georgia judgment; declare her legal status, rights, and relations to the children pursuant to the Georgia judgment; award her custody of the children or, alternatively, award her joint custody with the mother and establish a schedule of custodial periods; [and] order the mother to pay her child support.”
Without a hearing, the trial court granted V.L. visitation, solely on the basis of V.L. being an adoptive parent.
The Civs analysis concludes that the Fulton County Superior Court granted the adoption, in contradiction to Georgia law. E.L. argued that, at the time the adoption was granted, she and V.L. did not reside in Georgia in compliance with Georgia adoption statutes. Where were E.L. and V.L. living? Perhaps they were living in Alabama, but found a favorable judge in Georgia. We don’t know and the Civs don’t answer that question. Despite these shortcomings, the Civs concluded that they were still bound to uphold the Georgia adoption based on the Full Faith and Credit Clause of the U.S. Constitution:
[E]ven if the law of Alabama generally disallows adoption by same-sex partners, see In re Adoption of K.R.S., 109 So. 3d 176 (Ala. Civ. App. 2013), under the Full Faith and Credit Clause, a court of this state must still enforce a duly entered foreign judgment approving the adoption petition of a same-sex partner.
Now, look carefully at the case cited in the above quotation. Do you recognize In re Adoption of K.R.S.109 So.3d 176 (Ala. Civ. App. 2012)? How about Cari D. Searcy? Searcy and her homosexual partner, Kimberly McKeand, are the plaintiffs in the lawsuit wherein federal judge Granade ordered Mobile Probate Judge Don Davis to perform a homosexual “marriage.”
The underlying controversy of Searcy and McKeand’s federal lawsuit against Judge Davis is explained inK.R.S.: Judge Davis would not grant their adoption because:
The State of Alabama does not recognize same-sex marriages. Ala. Const. of 1901, Art. I, § 36.03; § 30-1-19, Ala.Code 1975. Section 30-1-19, known as the “Alabama Marriage Protection Act,” provides that ” [m]arriage is inherently a unique relationship between a man and a woman” and that ” [a] marriage contracted between individuals of the same sex is invalid in this state.” § 30-1-19(b). In addition, same-sex marriages that are valid in other states are not recognized in Alabama. § 30-1-19(e) (” The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.” ).
The Sanctity of Marriage Amendment, set forth in Ala. Const. of 1901, Art I, § 36.03, contains identical provisions to those of the Alabama Marriage Protection Act, and it further provides that Alabama will not recognize a common-law marriage between individuals of the same sex. Ala. Const. of 1901, Art. I, § 36.03(f).
The Civs in K.R.S. affirmed the probate court’s reasoning:
Further, as the probate court noted in its judgment, the federal Defense of Marriage Act, 28 U.S.C. § 1738C, provides that no state is required to give effect to a marriage of people of the same sex that is valid in another state. See also 1 U.S.C. § 7 (in interpreting federal law or administrative regulations, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘ spouse’ refers only to a person of the opposite sex who is a husband or a wife”)
Thus, Searcy and McKeand, most likely, went down the hall of Judge Davis’ probate court, asked for a marriage license, were denied, then filed a lawsuit with federal judge Granade.
With that digression out of the way, let’s get back to E.L. v. V.L. Despite the Civs lengthy discussion on the legitimacy of the trial court’s determination to “enforce the Georgia judgment as part of its adjudication of the custody petition filed by V.L.”, the Civs reversed the trial court because the trial court failed to have a hearing on the merits of the best interests of the children in awarding V.L. visitation.
This is undoubtedly a landmark decision. It’s only the third case in Alabama, of which I am aware, that our appellate courts discuss the issue of adoption and homosexual partners. However, it’s not surprising that the Civs ruled the way they did. In re Adoption of K.R.S. is the only case I know of where the Civs upheld Alabama law when opposed by homosexual lifestyles and practices. See D.H. v. H.H., 830 So.2d 21, 25 (Ala. 2002) (Civs “impermissibly reweighed the evidence” when it held that the trial court erred for not giving custody to a practicing homosexual parent); Ex parte N.B., 66 So.3d 249 (Ala. 2010) (Civs impermissibly overturned the trial court’s determination that a California court’s grant of visitation to a practicing homosexual lesbian “parent” should not interfere with the child’s adoption by his now step-father).
Photo by libertygrace0.
