Academic

Kentucky Court Blocks Lesbian Couple Adoption

By Nancy Polikoff

The Kentucky Court of Appeals has made marriage the dividing line between those children who can have two legally recognized parents and those who can’t. In an opinion handed down last Friday, the court ruled that “second-parent adoption” is not permitted under the state’s statutes. Second-parent adoption is the way that lesbian and gay couples have both gained the legal status as parents of the biological child of one of the partners. The first such adoption was granted in Alaska in 1985. Several states allow them; some do not; and in others trial court judges have granted adoptions but they have never been reviewed by appellate courts. (That was the case in Kentucky until this court decision!)

Second-parent adoption is analogous to step-parent adoption, but of course the bio parent and the second parent are not married to each other. They can be a same-sex or different-sex couple, or the bio parent and second parent can have a relationship that isn’t romantic at all…like two sisters who adopted together in Maryland.

Adoption typically terminates the parental rights of the child’s biological parents. Obviously, in a second-parent adoption this is not the desirable or appropriate result. Thus the analogy to step-parent adoption, where the original parent retains parental rights while his or her spouse also becomes a parent.

Well, the Kentucky court ruled that state law limits this type of adoption to a married couple. (and Kentucky is one of the majority of states that bans same-sex marriage). So the only way a lesbian biological mother’s partner could become a legal parent is by terminating the parental rights of that biological mother! How absurd! Other states have ruled that such a termination can be waived, but the court ruled that it was against Kentucky’s public policy to allow such a waiver. How about a public policy that wants a child to have a legal relationship with both his parents??

The court got it all wrong when it said that the granting of the adoption “elevated the status of the relationship between [the two women] to legal marriage.” (The non-bio mom’s lawyer also got it wrong when she argued that the court should treat the non-bio mom as a step-parent because it was necessary to give equal rights to gay couples.)

Here are some other interesting points about this case. The couple split up before filing for the adoption. Although that did not affect the court’s legal ruling, the court does make a snide and dismissive reference to the idea of former spouses filing to adopt. I think a lesbian couple filing for an adoption AFTER splitting up is not that unusual (it’s what my partner and I did!). That is the moment when the legal inequality can seem most disadvantageous for the child.

So the trial judge granted the adoption, and the way the case got to the Court of Appeals was that, more than a year later, when the parents were disagreeing about visitation and other matters, the biological mother went back into the court to undo the adoption, arguing it should never have been granted. This is not the first time a bio mom has done such a thing, but all I can say about it is…someone needed to stop her! She ruined matters for all children of same-sex couples in Kentucky to achieve her goal by any means. And here’s the irony…the court did NOT void the adoption IN THIS CASE because it was challenged over a year after it was granted, and that is an absolute no-no in Kentucky unless the trial court was defrauded, which didn’t happen here. So this child still has two mothers…as do the children of Kentucky whose second-parent adoptions were granted more than a year ago…but that option will no longer be available in the state.

Full post as published by Feminist Law Professors on September 17, 2008 (boomark / email).