A simple question that raises complicated constitutional issues p2

| Jan 20, 2016 | Child Custody |

We are talking about a case that may be heard by the U.S. Supreme Court. It comes out of Alabama, and it addresses an issue that was not settled when same-sex marriage became legal in every state last summer. The issue at hand is adoption by same-sex couples.

The parties are V.L. and E.L., a same-sex couple that broke up after a long relationship. When they were together, E.L. gave birth to three children. She is the children’s biological mother; the children were conceived through assisted reproductive technology. After the children were born, the couple agreed that V.L. should adopt them. Her legal status with regard to the children, however, was problematic.

Marriage makes a difference. If the couple had been married, V.L. could have adopted the children as a step-parent. She had legal standing. But, since they were not married, she had to approach the adoption as a third party, and, generally, a third-party can only adopt a child after the biological parents have given up their parental rights. The idea was not to take custody from one parent and give it to another, though. The idea was to share in the children’s upbringing, to be partners and co-parents.

V.L. could have made another argument if she and E.L. were married, although opponents of same-sex marriage would likely have lobbied hard against it. She could have asked the court to extend the presumption of paternity to same-sex couples.

The “presumption of paternity” originally referred to children born during a marriage. The presumption was that the husband of the birth mother was the child’s father. In Illinois, the law has been updated to include same-sex spouses as well as to apply the presumption to couples in civil unions or “substantially similar relationship.” The law essentially settles legal questions — support and custody, for example — before they come up. Any interested party can challenge the presumption in court, but, until the court says the child is not the spouse’s, the presumption holds.

Creativity does count – sometimes. The presumption did not apply because the law did not recognize E.L. and V.L.’s relationship as legally binding. As a result, they agreed that V.L. would adopt the children and E.L. would execute something called a “parental consent to adoption.” The Georgia court approved, and the family returned to Alabama.

We’ll continue this in our next post.

Sources:

Newsroom America, “U. of I. News: Gay adoption: A Minute With… U. of I. expert Sara R. Benson,” Jan. 5, 2016

SCOTUS Blog, “Opening a new phase of law for gays?” Lyle Denniston, Nov. 17, 2015

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