The short version first: Florida doesn’t allow lesbian and gay people (single or in pairs) to adopt. Many other states do, of course. So what happens when someone who has adopted in one of those states (say, Washington, a state which permits second parent adoptions) moves to Florida?
The answer, an appellate court said earlier today, is that Florida must recognize the adoption. In other words, when parenthood is established by adoption it is portable.
The longer version: As I’ve discussed before, the portability of parenthood is a critical question for lesbian and gay parents. It’s also an increasingly acute question, as some states become more permissive about lesbian/gay family rights (see the recent extension of marriage rights in New England and Iowa) even as other states contemplate even more restrictive laws (see for example, Louisiana.) Imagine being a parent in one state, with all the rights and obligations that entails, and then driving a couple of hours and finding that you are no longer a parent to your child and have no more rights than any person on the street.
Now there are, as this blog makes clear, many ways to become a parent–a legal parent, I mean. One is adoption. That’s what is at issue in this case.
Lara Embry and Kimberly Ryan lived in Washington. Ryan gave birth to a child on February 12, 2000. Embry adopted the child on May 10 of the same year. They moved to Florida and broke up in 2004. In 2007 Ryan denied Embry the right to see her child, claiming that Florida did not need to recognize Embry’s status as a legal parent. Ryan relied in part on Florida’s public policy of prohibiting same-sex couple adoptions. (Florida actually prohibits single-lesbian adoptions, too.)
While the trial court had agreed with Ryan, the appellate court unanimously reversed. The question turns on the Full Faith and Credit Clause of the US Constitution. (I discussed this in passing with respect to a Nebraska case several days ago.) The FFC requires a state (here Florida) to treat a court order from another state (here Washington, and the order is the order of adoption) as it would be treated in Washington. As the appellate court here notes, there is no “public policy” exception to the FFC. In other words, Florida cannot refuse to give FFC to the Washington court order on the grounds that it is against Florida public policy.
This conclusion isn’t really surprising (though it’s a relief.) Note that on appeal it appears Ryan agreed that the court had to recognize the Washington court order. Ryan argued, however, that while Florida might recognize the adoption, it shouldn’t enforce the parental rights created by the adoption because of Florida public policy. Judge Fulmer concurred here, specifically rejecting this argument.
The pending case in Louisiana about the birth certificate sought by the gay male couple raises much the same question as here. It will be interesting to see if the appellate court there (the United States Court of Appeals, as the case is being litigated in the federal system) reaches the same result.
To give credit where credit is due, the litigation was conducted by Leslie Talbot and the National Center for Lesbian Rights.
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My partner and I lived in Florida when she gave birth to our son. About a year later we moved to Minnesota where I was able to adopt our son through a second-parent adoption. When the courts in Minnesota sent Florida the request for an amended birth certificate we were refused. The state claimed that they did not have a place for me on the birth certificate as I did not meet Webster Dictionary’s definition of father – they have a space for mother and a space for father only. After much argument – and help from Lambda Legal – I was told that they would list me on the back of the certificate as a co-parent. I have always felt that they were refusing to recognize the adoption through a technicality. In light of this recent decision I wonder if I can or should follow up with the state and request an amended birth certificate that lists me on the front rather than on the back. Although we have never had any problems with the birth certificate, I worry that questions may arise.