Second-Parent Adoptions Pose Challenges in Alabama

Posted by Steven D. Eversole | Nov 16, 2012 | 0 Comments

A couple in Mobile was devastated to receive the Alabama Court of Civil Appeals' decision to affirm a ruling by the lower court, saying one could not adopt the biological child of the other. Despite the fact that both had raised the child since birth.

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Birmingham child custody lawyers know that the decision ultimately came down to sexual orientation: The partners are both women.

Whether it's a case of families headed by same-sex parents or a straight step-parent seeking to legitimize his or her role in the life of his or her spouse's children, second-parent adoptions in Alabama can prove challenging. It can be especially arduous for spouses who are not married.

Nonetheless, second-parent adoptions are legal in Alabama, according to rulings handed down by trial courts – not every state can claim that. In fact, Ohio, Nebraska, North Carolina and Wisconsin legally forbid it. Meanwhile, state statute expressly protects the right to second-parent adoption in Colorado, Connecticut and Vermont.

The ACLU has filed a lawsuit challenging a ban to it in North Carolina.

A second-parent adoption, if you aren't familiar, is a legal procedure that allows one parent's spouse to legally adopt his or her non-married partner's child without terminating the legal rights of the first parent. As a legal parent, he or she could make medical decisions for the child, as well as leave property to the child and bestow benefits. Additionally, a legal parent would have the right to visitation with the child, even if he or she was no longer romantically involved with the parent.

It can and is used in cases involving straight couples, but where it's recently gained the most attention is with regard to same-sex couples.

In Alabama, if a gay couple want to adopt, only one may legally do so.

It was hoped that second-parent adoption might be a way to get around this and allow both parents to have legal parental rights.

The local case involves a lesbian couple legally married 14 years ago in California, when gay marriage was still legal there. (State courts later decided that gay marriages performed there before the ban would still be recognized as legal.) Together, they have raised a now-6-year-old boy who is the biological son of one of the women.

The non-biological parent, seeking to legalize her position in the boy's life, sought a second-parent adoption.

Their case was presented before a Mobile County probate judge, who denied the adoption petition. Then just recently the Alabama Court of Civil Appeals upheld that decision, holding that the state's ban on gay marriage prevents the court from granting adoption rights to gay couples. 

The couple counters they aren't asking to be married, only to have an equal and legal say in decisions regarding their son.

They are now discussing the possibility of appealing that ruling to the state court and, if denied there, to the federal Supreme Court.

The case is especially important, they say, as the boy underwent open heart surgery when he was just 3 months old, and hospital officials have refused to allow the non-legal parent to sign permission forms for medical procedures.

A 2006 constitutional amendment was passed in Alabama banning same-sex marriage.

If you are exploring your options with regard to a second-parent adoption, call us today.

If you are contemplating a divorce in Birmingham, contact Birmingham Family Law Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Alabama appeals court denies Mobile woman right to adopt partner's son, Oct. 12, 2012, By Brenden Kirby, al.com

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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