I just read the Tenth Circuit opinion on recognition of out-of-state adoptions (cited and discussed by Dale below). Oklahoma law generally recognized out-of-state adoption judgments, but specifically exempted any out-of-state "adoption by more than one individual of the same sex." This, the Tenth Circuit held, violated the Full Faith and Credit Clause — "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The panel's ruling was 2-0 on the constitutional question, with one judge dissenting because he would have accepted Oklahoma's narrow reading of the statute that would have rendered the statute inapplicable to the relevant parties.
The Full Faith and Credit Clause analysis sounds right to me, but I'm not an expert on that Clause, and in any case want to leave the constitutional analysis to others. Here I just want to ask: Even if restrictions on recognition of out-of-state adoptions are constitutional, wouldn't they be a remarkably bad idea, and especially bad for children?
Consider especially children who are adopted by two new parents, rather than situations where a parent's child is also adopted by a second person (whether a same-sex partner or a traditional stepparent). The child's birth parents are often out of the picture — sometimes dead, sometimes unfit, sometimes just moved on to other matters. The adopted parents will often be the only parents the child ever knew. Even in open adoptions where a birth parent or parents remains in contact with the child, the whole point of the adoption is to relieve the birth parents of legal rights and responsibilities over the child, and to let the child be raised by — and bond with — the adoptive parents, with only a minimum amount of participation by the birth parents.
So here's this child, who has been raised by the adoptive parents for years. She comes to Oklahoma — perhaps on a trip to visit the adoptive parents' family or friends, alone on some school trip, or when the family moves to Oklahoma for a parent's job. Now some occasion arises on which Oklahoma law must determine the child's parents: An Oklahoma hospital needs to get consent for medical care; an Oklahoma police agency needs to determine whether the adults with the child are legally authorized custodians for the child; an Oklahoma school needs authorization for this or that from the parent.
Under Oklahoma law, as I read it, the adoption can't be recognized. So who are the child's parents? Why, the biological parents, wherever they are and whatever they may be doing. Even if the adoptive parents can be somehow treated as the child's guardians, presumably there'd need to be some checking with the biological parents. What if the biological parents are virtually impossible to find? What if they are dead? What if they decide to reassert their parental rights, almost certainly very much against the child's desires, but perhaps if they're trying to implicitly extort some payment from the adoptive parents? (Such implicit extortion can take place without any incriminating statements being made by the biological parents.) [UPDATE: Some commenters suggest that perhaps the termination of the biological parents' rights would be recognized but the adoption by the adoptive parents would not be — in which case, the child would have no legally recognized parents, and might perhaps then end up the ward of the state, hardly an improvement over the scenario I first described.]
What a horrible situation for the child — to have the government not recognize the only parents you've known as your parents, and to have the government thus interfere with your ability to get all the services that require your parents' approval. This is much worse than not having your parents' marriage recognized as a marriage, which might burden you in other ways. It's much worse than even not having one of your parents recognized as your parent (bad as that would be). It might put you in the position where there is no-one close to you who has the legal power to help you in those legal contexts that require a parent.
And what possible justification can there be for harming children this way? Say you think that children are better off with parents of the opposite sex than with parents of the same sex. I'm not sure that's right; and I suspect that restricting adoption will on balance leave more children with no permanent parents at all, the worst possible situation for them.
But even if children are better off with parents of the opposite sex, I doubt that the Oklahoma law will have much of a deterrent effect on adoptions by same-sex couples. Certainly people who adopt in California are unlikely to decide not to adopt (or to adopt with a different partner) because of a fear that they'll have trouble if they move to Oklahoma. Perhaps a few Oklahoma couples won't leave the state to adopt and then come back. Yet on balance the harm to adopted children will, I think, very much outweigh whatever conceivable benefit there may be in shifting some adoptions away from same-sex couples and towards opposite-sex parents.
So the Oklahoma statute would either harm children of same-sex couples who visit or move to Oklahoma — or will lead their parents not to go to Oklahoma at all, or let their children go to Oklahoma. I see no plausible justification for either alternative, which is why it seems to me that, even apart of constitutional questions, laws such as Oklahoma's should be strongly condemned.
Related Posts (on one page):
- Recognizing Out-of-State Adoptions:
- More on that Tenth Circuit adoption decision:
- Oklahoma must recognize out-of-state adoptions by same-sex parents:
Sk
More likely, although the Oklahoma courts would not recognize the adoption, they would recognize the termination of parental rights that preceded it (or occurred simultaneously). The child, by operation of law, would have been left with one parent, or with none.
The only difference is that adults are screwed by such stupidity, not vulnerable children. Which is a small comfort, I guess ...
While I cannot speak for every jx, I know that where I am at, an adoption requires a valid TPR (termination of parental rights). A TPR is a judgment. A TPR severs the parental relationship with the biological parents- they would be strangers (from a legal standpoint) to the child.
Therefore, once the adoption is invalid, the child would have no parents, and would become a ward of the state. Yay!
Now I guess since Oklahoma is ignoring other states' judgments (adoptions) they can just go ahead and ignore the TPR as well, and return the child to the biological parents. Since some adoptions are the products of dependencies and the TPRs are for cause (physical abuse, loves the crack cocaine etc.), we can just take the child and place them back with the awful situation they were in to begin with....
This is the result of legislators overreaching.
They don't like gays.
They don't want gays to adopt.
Therefore, instead of just preventing gay adoptions (which is done in many states), they absurdly overreach, and end up with this.
Don't mean to hijack this thread, but AQ's problem is that she has been cloistered with liberals for so long and her mind is so closed to opposing thought, that she does not know that most anti abortion adherents do not want to punish women who have abortions at all; it is the performer of the abortion who would be breaking the law.
By "many", you mean "one" (Florida, for those playing at home). A handful more prevent two-parent gay adoptions, or second-parent gay adoptions.
Professor Volokh, what is the basis for your claim that adoption works differently? How do you know that plural paternal adoption works differently from plural marriage?
If Oklahoma were to take custody away on grounds that e.g. the (sole) adoptive father was engaging in conduct harmful to the child, whether you disagreed with such a determination or not, that would be a separate case.
Which is a terrible tragedy, since so many gays want to move to OK for the fabulous circuit parties.....
It was my understanding that other states banned 'gay adoption' (meaning two gay parents). This is true. Florida's statute (under s. 63) bans adoption by a single gay parent. During a talk given by Babrba Wodehouse it was related that the S. Ct. denied certiorari on a challenge to the statute as it was not timely (the 11th upheld) as it was the only state to have such a law; it was also my understanding that other states were in the process of passing or had passed similar laws.
Since this was anecdotal (and apparently misremembered on my part, as family law is not my specialty), I stand corrected.
Redman, that makes no sense. Not that I generally expect abortion opponents to make sense.
If a fetus is a human being whose life is entitled to protection, then how is a woman who procures an abortion any different from a woman who hires a hit man to off her 5-year-old?
Now, if a lesbian couple had a child, where one spouse adopted the child that the other conceived and carried, the biological mother would presumably maintain her parental rights.
If you would like, we can bicker about this elsewhere, so as to not hijack Prof. Volokh's thread.
(Sidenote: Always be suspicious where the main argument is "think of the children".)
That's what I got from EV's analysis too. Considering how some prosecutors voluntarily contract rabies when it suits their political goals, I wouldn't be surprised if some visiting gay adoptive parent were prosecuted for kidnap -- just for leaving the state with her adoptive child.
Sure- but we dont otherwise invalidate adoptions for the reason "I dont like the parents" or "Jesus told me the parents are wrong."
I can't think of another statute that automatically invalidates an adoption; maybe if it was fraudulent? but then there would be a trial one would imagine.
"Think of the children" is just as bad a soundbite as "think of Jesus" or "judicial activists!"
First, the statute only invalidates same-sex adoptions, not opposite sex ones. Second, the statue purports to invalidate options validly granted in another state. It's not a matter finding some flaw in the California adoption process, it's a matter of admitting the process was fine, then refusing to recognize the result. Third, the whole point of FF&C is that Oklahoma can't just "declare invalid" an adoption granted in California. The fact that California has granted the adoption is conclusive and any dispute over that has to be dealt with through whatever process was provided in California at the time of the adoption. Oklahoma (or any other state) doesn't get to redo the adoption process.
The bizarre thing about this law is that a common theme of adoption law is an effort to avoid rendering adoptions invalid. That's the point behind the putative father registries that have popped up all over the country. Oklahoma took a step backwards.
But more to your point, can you give an example of another state law that renders an adoption "invalid" without providing for the care or custody of the children? In every other scenerio I can think of, someone has a piece of paper signed by a judge or a children's services agency giving them responsibility and authority for a kid. That piece of paper is valid until superceded by another piece of paper assigning responsibility and authority to someone else. But in Oklahoma, they just declare the adoption "invalid" and walk away from the kid.
Your argument is a straw man.
(Sidenote: Always be suspicious where the main argument is "think of the children".)
Adoption is one area where pretty much the only argument should be "think of the children."
It is my impression that there are very strict time limits on challenging the validity of an adoption. I think in Wisconsin it was one year, and even within that year the legal hurdles were high. It's insane to invalidate adoptions a decade or more after the adoption took place, but that's what the OK does (did) on the face of it.
The adoptive parents have no will and the kid is their only relative, so in their home state of California their kid would inherit everything. Does he still inherit in this scenario or does the Oklahoma statute invalidating the adoption mean the kid gets nothing?
The situation gets a bit complicated. If Okalhoma got to apply its own law to the situation, then I'd say you are correct. OK would not recognize the adopted kid as an heir-at-law, since s/he would not legally be a child of the decedents since the adoption is not recognized.
But, you say the couple just travelling through OK, and are domiciled in CA. I believe their estate would be probated in the state of their domicile at death, i.e. California, so California law would apply, and the adopted child should inherit. It would get more complicated if the decedents owned real property in Oklahoma, or if they owned any movable property whose situs was Oklahoma -- for Oklahoma law would likely govern the devolution of those assets, and would likely bar the adopted child from inheriting.
of course this is all theoretical now that the law has been struck down.
No doubt the gay stereotypes that inhabit your mind have no interest in living in Oklahoma. And no doubt that a good chunk of actual homosexuals would rather live in more progressive places. Nevertheless, compelling issues of family, job, or even a bizarre appreciation for places like Oklahoma could cause a homosexual--may especially one with a partner and a child--to plop down there. Since the law creates compelling, countervailing family issues it just might succeed in keeping some of them away.
When Tulsa is featured in Passport magazine, I'll eat my words.
In the meantime, learn that not everything a gay man says should be taken seriously. Shhhh! It's our 'secret code' that heteros have a tough time understanding.
Hey, some of us heteros get sarcasm. When will gay people learn to judge us as individuals rather than as members of a class.