In the category of “this just in”–the Supreme Court of Idaho published an opinion today in which it concludes that Idaho law permits a lesbian to complete a second-parent adoption. This warrants at least a short post. I’ve written about second-parent adoptions in the past, (and very recently about NY decision denying a second-parent adoption) but let me do a quick recap:
Second-parent adoptions are of particular importance to lesbian families. If a lesbian couple decides to raise kids, one way to do that is for one woman to give birth to the child. By virtue of giving birth, she will be deemed a legal parent of the child. In states where the lesbian couple can marry, if the woman who gives birth is married her wife will probably be considered the legal parent of the child as well. (This is why the NY judge wouldn’t allow the wife to adopt the child, in fact.) But in states that do not allow the lesbian couple to marry or recognize their marriage if they marry in another state, the non-birth-giving partner may not be a legal parent. While there are other routes she might travel (I’m thinking here of holding out) the most common solution is to have her adopt the child. But ideally she wants to do that an become a second
Even if other routes are available, adoption is in many ways preferable, because it is portable. By this I mean that wherever the family goes, parentage via an adoption will be recognized, while parentage via marriage, say, may not be. (Again, this is the problem in that NY case.)
Now to Idaho. Jane Doe (need I say not her real name?) was the partner of Jane Doe I (ditto). The two women have been together since 1995 and have entered into a civil union (in VT) and gotten married (in CA). Idaho does not recognize either of those relationships.
John Doe was born to Jane Doe I in 1998. Jane Doe I adopted John Doe I in 2002 when he was just 2 days old. (As I understand it, Idaho wouldn’t permit a joint adoption by the two women.) The boys are now 12 and 15. Jane Doe, along with Jane Doe I, has raised them since birth.
Jane Doe sought to adopt the boys with the support of Jane Doe I. Given the age of the children, they too were consulted and wished the adoption to proceed. So an adoption petition was filed. But the magistrate, without notice of her intention, denied the adoption on the ground that since Jane Doe and Jane Doe I were not married, Jane Doe had no standing to seek adoption. In other words, she ruled that Jane Doe could not even begin an adoption proceeding.
This ruling was appealed to the Idaho Supreme Court and lead to today’s opinion. In it the court determines that the magistrate erred because she looked beyond the language of the relevant Idaho statutes to the underlying intent of the law. It’s a pretty settled principle that you don’t get to look to intent unless you first find that the actual language of the statute is ambiguous–subject to more than one interpretation.
In this instance the ID court found that the ID statute was unambiguous. The statute states that “any adult person” can complete an adoption. The Idaho Supreme Court found no ambiguity there and, in particular, found that reading it to say “any married adult person” was improper. Thus, Jane Doe has standing and can seek to adopt.
It’s worth noting that whether Jane Doe can actually adopt is not yet determined by this opinion. That’s a matter the magistrate didn’t reach and so she (or some other magistrate) must reach it on remand. Further, as the concurrence notes, the ability to adopt without disturbing Jane Doe I’s parental rights (which is what makes this a second parent adoption) is to be determined by the magistrate. That’s not ideal, but it’s surely a big step forward from where Jane Doe stood.