A lesbian mother’s quest for joint custody of the children she had adopted in Georgia and raised together with her former same-sex partner took a step closer to the Supreme Court on Monday, December 14, when the Court granted her “Application for Recall and Stay of Certificate of Judgment of Alabama Supreme Court.” V.L. v. E.L., No. 15-648. V.L. is asking the Supreme Court to overturn a September 18 ruling by the Alabama Supreme Court, which refused to recognize the validity of the adoptions, having filed her Petition for Certiorari with the Supreme Court on November 16.
The Supreme Court justices did not explain their grant of this stay request. They normally issue no explanations for their rulings on such applications, but, as Chief Justice John Roberts explained in 2012 in an “in chambers” ruling on such a petition (see Maryland v. King, 133 S. Ct. 1, 2 (2012)), a stay of a lower court decision while the Supreme Court is deciding whether to grant review is warranted when there is “(1) a reasonable probability that this Court will grant certiorari, (2) a fair prospect that the Court will then reverse the decision below, and (3) a likelihood that irreparable harm will result from the denial of a stay.” The Court did state that if it denies review in this case, the stay will terminate automatically. If it grants review, the stay will be in effect as long as the case is pending before the Supreme Court.
The Alabama Supreme Court’s refusal to recognize the Georgia adoption meant that V.L. had no legal standing to seek joint custody or visitation in the Alabama circuit court, and that the interim visitation order issued by the circuit court and affirmed by that state’s court of appeals was terminated, disrupting V.L.’s relationship with her children. Unless the Alabama Supreme Court’s ruling was stayed pending appeal, V.L. and her children could suffer a prolonged period of separation, an injury not reparable through damages or other retrospective judicial relief and thus “irreparable” for purposes of this stay application.
Perhaps more to the point, the Alabama Supreme Court’s refusal to recognize the Georgia adoption was a clear departure from the constitutional requirement that sister-state court judgments be accorded “full faith and credit.” The Alabama court did this by opining that the Georgia trial judge had misconstrued Georgia’s adoption statute when granting the adoption and thus that court did not have “jurisdiction” (legal authority) to grant the adoption. This is a novel twist on the concept of jurisdiction, and a clear departure from the Supreme Court’s past interpretations of the Full Faith and Credit Clause.
A dissenting Alabama Supreme Court justice argued that the ruling theoretically opened up to challenge any out-of-state adoption when a majority of the Alabama Supreme Court disagreed with how the courts of another state interpreted their adoption statute, leading to uncertainty in an area of the law where courts have traditionally stressed the need for certainty and stability – child custody.
By granting V.L.’s stay application in this case, the Supreme Court is signaling the likelihood that it will grant review and the strong possibility that it would reverse the Alabama Supreme Court’s ruling, to judge by Chief Justice Roberts’ description of their decisional process.
Respondent’s briefs in opposition to review are normally due to the Court a month after a petition is filed (which would be this week), although the Court can grant a motion to extend time. After all the briefs have been filed, the Court may schedule the petition for consideration at a private conference of the Court. At the pace this process usually runs, a decision whether to review the case might be expected a few months down the line. Review would normally have to be granted by mid-January for a case to be argued in this term of the Court. Unless the justices feel particular urgency to take up this case, it might not be argued until the fall of 2016, with a decision late in 2016 or early in 2017. The temporary stay reduces the urgency, if it means that V.L.’s temporary visitation order goes back into effect — a conclusion that is not certain until the lower Alabama courts address the scope of the stay.
V.L. is represented by the National Center for Lesbian Rights, cooperating attorneys from Jenner & Block LLP (Washington, D.C.), and local counsel Tracie Owen Vella (Vella & King) and Heather Fann (Boyd, Fernambucq, Dunn & Fann, P.C.), both of Birmingham, Alabama. The lead Jenner & Block attorney on the case is Paul M. Smith, who argued the appeal in Lawrence v. Texas that resulted in the Supreme Court striking down laws against consensual gay sex in 2003.