Nancy Polikoff

A film about two lesbian moms, The Kids Are All Right, is an Oscar contender this month. ABC’s Modern Family, which features two gay dads, won last year’s Best Comedy Emmy. But a series of court cases in the past two months shows that the right of lesbian and gay people to be recognized as parents is still very much open to challenge—and one legal expert says the challenges will increase.

Challenges to lesbian and gay parental rights have usually fallen into one of three categories: challenges to adoptions and court orders—usually when one parent seeks to block the rights of the other parent after their relationship ends; challenges to parental rights based on marriage or civil union status; and challenges by some states to parental rights established by other states.

While the first two types tend to be limited to state courts, the last may move into federal court jurisdiction.

Challenges to adoptions and court orders

Most cases in the past several years involving lesbian and gay parents have been custody battles emerging from the break-up of a relationship. Typically, the biological parent challenges the rights of the nonbiological parent who has not secured legal parentage through a second-parent adoption or court order.

The Ohio Supreme Court heard arguments February 2, for example, in just such a case, In re L.K.M. After the parents broke up, the nonbiological mother petitioned for joint custody, which was granted by a magistrate judge but then overturned by the juvenile court. An appellate court upheld the reversal. The Ohio Supreme Court then accepted the case for review.

Three recent cases, however, involved a biological mother challenging the rights of the nonbiological mother despite the fact that she had secured an adoption or court order. Nancy Polikoff, professor of law at American University and an expert in LGBT family law, says this is a new and worrisome trend.

In In re Adoption of T.A.M. and E.J.M., a Minnesota appeals court on December 14 refused to overturn a nonbiological mother’s second-parent adoption because of the “extreme tardiness” of the biological mother’s legal challenge. Under Minnesota law, a person who wants to challenge an adoption must do so within 90 days of the final decree, and, in this case, the challenge came eight years later. The court did not say whether state law permits second-parent adoptions by same-sex parents.

On December 21, a Wisconsin appeals court ruled in a similar case, In re the paternity of Christian R.H. Wisconsin does not permit second-parent adoptions, so the nonbiological mother had obtained a court order of parentage, an alternate route for legal recognition in some places. The state appeals court found that the parentage order must remain in effect because, again, the biological mother waited too long to challenge it. But the court also made clear that such parentage orders are not allowed under state law.

And in the harshest blow to same-sex parents’ rights, the North Carolina Supreme Court on December 20 voided the second-parent adoption of a nonbiological mother, in Boseman v. Jarrell. Instead of simply saying that the adoption court had misapplied state statutes—which would have overturned the adoption in question and stopped any future ones—the state’s highest court said the adoption court did not have the authority to grant the adoption in the first place. That cast doubt on the legality of all previous second-parent adoptions in the state as well.

The North Carolina Supreme Court also rejected the argument that the biological mother filed her appeal too late to challenge the adoption. The majority said that, because the judgment was declared void, it could be challenged at any time. Two judges dissented on this point.

The court did, however, allow the nonbiological mother joint custody, saying it was in the best interests of the child.

Polikoff says there may be an “escalation” in the number of these cases that challenge even adoptions and court orders because more same-sex couples are raising children and legally securing both parents’ rights.  And, as with all couples, some percentage of the couples will break up.

“The question is what kind of obligation does the bio mom feel to the integrity of the family that she created?” said Polikoff, noting that conservative legal organizations are quick to offer free services to biological mothers in these cases.

Challenges to parentage based on marriage or civil unions

Polikoff said that the spread of marriage equality and civil unions may paradoxically create more challenges to parental rights, too. In states that recognize same-sex unions, nonbiological mothers are presumed to be legal parents, without needing an adoption or parentage order.

But LGBT legal organizations, such as Gay and Lesbian Advocates and Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), recommend that nonbiological parents get an adoption or parentage order anyway, because other states might not honor parental rights that are based on a marriage or union the state doesn’t recognize. Under the federal Defense of Marriage Act (DOMA), states are not obligated to recognize same-sex marriages from other states.

Polikoff says many parents will not know this, however. With four states adopting marriage equality between the end of 2008 and the beginning of 2010, she said, “we haven’t even begun” to see cases challenging parental rights that are based on those unions, as couples travel and move to other states.

One prominent example of such a challenge is the long-running case of Lisa Miller and Janet Jenkins, who had a civil union and a child in Vermont. Miller, the biological mother, moved to Virginia after the couple broke up and tried to get Virginia to deny rights to Jenkins on the grounds that Virginia did not recognize their civil union. After a series of lower court battles, the Virginia and Vermont Supreme Courts upheld Vermont’s jurisdiction and Jenkins’ parental rights. Miller appealed to the U.S. Supreme Court, which in November 2010 refused to hear the case.

Interstate challenges

Almost all courts that have heard challenges by one state to another state’s adoption decrees, however, have ruled that adoptions by same-sex parents are entitled to full faith and credit under the U.S. Constitution. These include the 10th Circuit U.S. Court of Appeals, which in 2007 struck down an Oklahoma law that banned recognition of adoptions secured by same-sex parents in other states; a Florida Court of Appeal that in 2009 said Florida must recognize a second parent adoption granted in Washington state; and the Nebraska Supreme Court, which in 2002 said Nebraska must recognize a second-parent adoption granted in Pennsylvania. Neither Florida nor Nebraska would have granted the adoptions under its own laws.

Still unsettled, however, is Adar v. Smith, in which the state of Louisiana claims it does not have to grant a new birth certificate to a Louisiana-born child adopted by a gay couple in New York, because Louisiana does not allow joint adoptions by unmarried couples. In February 2010, a three-judge panel of the U.S. Fifth Circuit Court of Appeals ruled that Louisiana must issue the birth certificate. The state has appealed the panel ruling to the full court, which heard arguments January 19.

Mathew Staver, founder of the conservative Liberty Counsel, has said cases such as Adar provide a “back door” to marriage equality.

“If a sister state is required to recognize same-sex adoption,” he said in a statement about the case in 2009, “even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

Brightening the outlook for same-sex parents is the January 5 Connecticut Supreme Court decision in Raftopol v. Ramey that a gay male couple are both legal parents to the twins they had via a gestational surrogate—one who is not genetically related to the children. That judgment should be given full faith and credit in other states, Polikoff said—but noted such a ruling has not yet faced a challenge.