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Judith Kaye, a champion of lesbian & gay rights, dies at 77

Posted on: January 11th, 2016 by Art Leonard No Comments

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.

Lesbian Mom’s Case Closer To Supreme Court Review

Posted on: December 14th, 2015 by Art Leonard No Comments

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.

Rogue Alabama Supreme Court Refuses to Recognize Georgia Co-Parent Adoption

Posted on: September 21st, 2015 by Art Leonard No Comments

Under the United States Constitution’s Full Faith and Credit Clause, a state court is supposed to recognize the judgments of courts from other states unless those courts did not have jurisdiction over the parties or the subject matter of the case.  Asked to rule on whether an Alabama court must recognize a Georgia adoption decree involving a same-sex couple, however, the Alabama Supreme Court manufactured a jurisdictional issue in order to reverse a ruling by Alabama’s Court of Civil Appeals and deny recognition to the Georgia adoption.  As a result, the child’s adoptive mother, identified in court papers as V.L., will be denied visitation with the children she had been raising with her former partner.

The court issued its September 18 decision in E.L. v. V.L. “per curiam,” which means that none of the justices is credited with writing the opinion.  Justice Greg Shaw was the sole dissenter, arguing that there was no jurisdictional issue in the case and that the court was required to recognize the adoption.  Justice Tom Parker wrote a brief separate opinion that seemed largely beside the point.

The women were involved in a relationship for six years during which they resided in Alabama.  They decided to have children through donor insemination.  E.L. gave birth to one child in 2002 and twins in 2004.  Following their birth, V.L. acted as a parent to the children along with E.L.  The women decided jointly to have V.L. adopt the children as a co-parent, but that was impossible in Alabama at that time.  They learned through friends in Georgia that the Fulton County Superior Court had granted second-parent adoption petitions, and the only thing that stood in their way was a six month residency requirement.  They rented a place in Georgia to establish residency, proceeded through the formal adoption procedures, and obtained an adoption decree on May 30, 2007, after which they resumed full-time residency in Alabama.  Subsequently they obtained new birth certificates for the children listing V.L. as a parent, presumably by showing the adoption decree to the appropriate Alabama clerk to obtain the new birth certificates.

The women ended their relationship in November 2011.  V.L. moved out of the home they had shared.  E.L.  eventually denied V.L. further access to the children.  V.L. brought the Georgia adoption decree to the Jefferson (Alabama) Circuit Court, asking to have it registered and to get a declaration of her legal parental rights, including “some measure of custody of or visitation with the children.”  Her case was transferred to the Jefferson Family Court.  E.L. moved to dismiss the case, but the family court denied her motion without a hearing, awarding V.L. visitation rights.  E.L. filed various motions seeking to upset this ruling, which were all denied by the family court.

E.L. then appealed to the Alabama Court of Civil Appeals, which rejected most of her arguments but agreed that the family court should have given E.L. a hearing on the “best interest of the children” before denying her motion to dismiss the case.  E.L., observing that the Court of Civil Appeals’ ruling had implicitly rejected her argument that the Georgia adoption was invalid, sought to appeal that part of the ruling.  The Alabama Supreme Court agreed to review it.  In its September 18 ruling, the Supreme Court reversed the lower appeals court, concluding that Alabama was not required to give full faith and credit to the Georgia adoption decree.

In order to refuse to recognize the Georgia adoption, the Alabama court had to find either that the Fulton Family Court lacked jurisdiction over this family or over the subject matter of the adoption proceeding.  E.L. contended that the women had not really established residence in Georgia.  Although they rented a place, she contended, they had not actually moved there, as they had jobs in Alabama and had retained their residence there, just spending a few days in the Georgia house in order to create the appearance of residency and to be there when child welfare officials came to interview the family as part of the adoption proceeding.  She also argued that despite Jefferson Superior Court’s ruling, Georgia’s adoption statute did not allow for second-parent adoptions, so the court did not have the power to approve such an adoption.

The Alabama Supreme Court embraced the objection to subject matter jurisdiction.

E.L. argued that the Georgia adoption statute did not apply to this adoption proceeding because the statute conditions the court’s authority to grant an adoption by a “third party” on a finding that “each living parent or guardian of the child has surrendered or had terminated all his rights to the child in the manner provided by law prior to the filing of the petition for adoption.”  The Georgia Supreme Court has never addressed this issue, but the Alabama Supreme Court premised its ruling on a dissenting opinion by one justice of the Georgia Supreme Court from that court’s decision to deny review in a case involving a second-parent adoption.  The Alabama court insisted that the dissenting Georgia justice’s opinion provided “the proper analysis” of the Georgia adoption statute, and insisted that “a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply” with the adoption statute.

The argument in the Alabama Supreme Court boiled down to the question whether E.L. was challenging the “merits” of the Georgia adoption decision or the “jurisdiction” of the Georgia family court to grant the adoption.   Under the Full Faith and Credit Clause, the Alabama court may not inquire into the “merits” of the adoption decision, but may refuse to recognize it if the Georgia court did not have “jurisdiction” to issue the adoption decree.

Wrote the Alabama justices, “E.L. argues that the Georgia court could properly exercise subject-matter jurisdiction only when the requirements of the Georgia adoption statutes were met, and, in this case, they were not, she argues, because those statutes made no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.  E.L.’s argument regarding the Georgia adoption statutes appears to be correct,” the court said, citing the dissenting opinion by the sole Georgia justice who had voted to review a case that his colleagues decided not to review.  Thus, the Alabama court concluded, the court “erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.”  The court went on to find that this error was jurisdictional, not just a misinterpretation of the statute by the Georgia Superior Court.  Since E.L. had not agreed to terminate her parental rights, wrote the court, “the Georgia court was not empowered to enter the Georgia judgment” and thus “lacked subject-matter jurisdiction” to enter that judgment.  “The Georgia judgment is accordingly void,” wrote the court, “and the full faith and credit clause does not require the courts of Alabama to recognize that judgment.”

Justice Parker’s “special concurrence” stressed that under Alabama law there is no “right to adopt” but rather a “privilege” to do so on terms set by the state.  He invoked a 2004 decision by the U.S. Court of Appeals for the 11th Circuit upholding Florida’s ban on gay adults adopting children (a ban that has since been struck down by the Florida state courts) to support his argument that Alabama has a legitimate interest “in encouraging a stable and nurturing environment for an adopted child by encouraging that the child be raised in the optimal family structure with both a father and a mother.”  What this has to do with the matter before the Alabama Supreme Court in this case is unfathomable, since it is about recognizing a second-parent adoption that took place several years ago.  Refusing to recognize it will not result in these children being raised in a different-sex household.

Justice Shaw’s dissent is clear and to the point.  “The main opinion reviews the merits of the adoption in this case,” he wrote; “our case law, interpreting the United States Constitution, does not permit this Court to do so.”  The provision in the Georgia adoption statute that the Alabama Supreme Court invoked “speaks to the merits of whether the adoption should be granted — not to whether the trial court obtains subject-matter jurisdiction.”  Georgia statutes give the Georgia Superior Court jurisdiction “in all matters of adoption.”  “This would include adoption matters where the petitioners fail to ‘satisfy’ the court that the requisites for an adoption were met,” he wrote, quoting a Georgia Supreme Court ruling on “subject-matter jurisdiction” as meaning authority to decide “the class of cases to which that particular case belongs.”

“The adoption petition in the instant case,” he wrote, “whether meritorious or not, was part of the class of cases within the Georgia court’s jurisdiction to decide.  The fact that the adoption should not have been granted does not remove the case from the class of cases within that court’s power.”  While Shaw would “tend to agree” that on the merits the Georgia Superior Court erred by construing Georgia’s adoption statute to allow this adoption, that was irrelevant to a full faith and credit analysis.  “Our case law prohibits an inquiry into the merits of a foreign judgment,” he insisted.  “Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama:  Any irregularity in a probate court’s decision in an adoption would not arguably create a defect in that court’s subject-matter jurisdiction.”

Ironically, it appeared that E.L.’s stronger argument, if it could be proved in a trial, would be that the women had never met the residency requirement because they had failed to actually live in the rented premises for six months before filing the adoption petition.  But had the Alabama Supreme Court taken that route, the case would have to be sent back to the Jefferson Family Court to litigate the residency question, and if V.L. made the strong argument, the adoption would be recognized.  By taking the more convoluted jurisdictional route, the Alabama Supreme Court arguably precluded the recognition of any Georgia second-parent adoptions, and also provided a theoretical basis for challenging the validity of adoptions from other states whose statutes did not clearly authorize them.

The National Center for Lesbian Rights represents V.L. together with Alabama lawyers Heather Fann and Traci Vella.  Although they criticized the Alabama Supreme Court’s ruling, it was unclear whether V.L.’s lawyers would try to get the U.S. Supreme Court to review it.  That court has turned down prior requests to review lower court rulings on gay adoption issues, most prominently in a 5th Circuit case where the court of appeals refused to order Louisiana to recognize the New York adoption of a Louisiana-born child by a New York couple for purposes of getting a proper birth certificate for the adopted child.  In that case, the 5th Circuit held that federal district courts do not have authority to order state government officials to recognize out-of-state adoptions, opining that such “recognition” cases had to be brought in the state courts.  V.L. followed the state court route, at first with success, but ultimately encountered the outspokenly anti-gay Alabama Supreme Court, which is also now considering a motion by a county probate judge for a ruling that the state does not have to comply with the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges.



Schizophrenic Michigan Family Law – Out-of-State Adoption is Stronger than Out-of-State Same-Sex Marriage in Custody Disputes

Posted on: October 23rd, 2013 by Art Leonard No Comments

On October 17, two different panels of the Michigan Court of Appeals ruled in cases where lesbian co-parents were battling over child custody.  In one, a birth mother prevailed because the court refused to recognize the couple’s Canadian same-sex marriage.  In the other, however, the court found that the state’s full-faith-and-credit obligation required recognition of an out-of-state second-parent adoption that could not have been done in-state, and affirmed a sole custody award to the second parent adopter of some children from China who had originally been adopted by her former partner.

In the first case, Stankevich v. Milliron, 2013 WL 5663227, 2013 Mich. App. LEXIS 1684 (Oct. 17, 2013) (unpublished opinion), the court of appeals affirmed the Dickinson Circuit Court’s award of summary judgment to the birth mother of the child who was conceived through donor insemination, on the ground that her spouse is not legally related to the child.  The women married in Canada in 2007, at which time Milliron was pregnant.  She gave birth after the marriage.

The parents separated in 2009 and ultimately disagreed on a visitation schedule.  Stankevich then sought an order dissolving the marriage, affirming that she is a parent of the child, and making custody, parenting time and child support awards.  Milliron moved for summary judgment, arguing Stankevich had no standing to bring the action as a legal stranger to the child.

The court of appeals, in a per curiam opinion, found that under the state’s Child Custody Act a parent is either “a natural or adoptive parent” and that Stankevich was neither.  “Here, there is no dispute that  plaintiff is not related to the child by blood.  Thus plaintiff is not a parent as defined by MCL 722.22(h),” wrote the court.

The court refused Stankevich’s request to use the “equitable parent doctrine,” finding that under Michigan precedents it would not apply to a situation involving a child who was not conceived during a marriage recognized by the state, and Michigan does not, as of now, recognize same-sex marriages.

Citing U.S. Windsor, the court said that the definition of marriage is a matter of state law, and Michigan has decided by statute and constitutional amendment to eschew recognition of same-sex marriages.  “As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a parent as defined under the CCA or the equitable parent doctrine, and therefore lacks standing to bring this action,” said the court, which also held that it could not entertain Stankevich’s constitutional equal protection argument, because it was bound by a prior decision of the Michigan Supreme Court and thus did not have authority to declare that such a refusal to recognize the marriage violates the equal protection clause.

On the same day, the Court of Appeals rejected the attempt by a lesbian mother who had entered into joint adoptions of children with her former same-sex partner in an Illinois court to argue in a subsequent custody dispute between them that the adoptions were invalid.  Giancaspro v. Congleton, 2013 Mich. App. LEXIS 1701 (Oct. 17, 2013).

Diane Giancaspro and Lisa Congleton, Michigan residents, began living together in 1995.  Subsequently, Congleton adopted children in China.  After bringing the children back to the United States, Congleton and Giancaspro jointly adopted them through a second-parent adoption proceeding in Illinois.  They went to Illinois for the adoptions because second-parent adoptions are not available in Michigan.  (The pending marriage equality lawsuit in U.S. District Court in Michigan, Deboer v. Snyder, originally began as a 14th Amendment challenge to Michigan’s refusal to allow second-parent adoptions.)

The parties’ relationship subsequently broke down.  In the resulting custody dispute, the trial court at first granted summary judgment to Congleton on her argument that it would violate public policy for a Michigan court to recognize an out-of-state second parent adoption, but the Court of Appeals reversed in an unpublished decision in 2009, finding that full faith and credit required Michigan to recognize the Illinois second-parent adoption judgment.  The court of appeals then returned the case to the trial court for a ‘best interest of the children’ determination.

The Berrien Circuit Court then found that it would be in the children’s best interest for Giancaspro to be their sole legal parent, with visitation rights for Congleton.  The tense relationship between the former partners evidently precluded a joint custody award, and based on the factors considered by Michigan courts in deciding custody disputes between legal parents, Giancaspro won on points.  During this stage of the litigation, Congleton attempted to discredit the Illinois adoption by offering evidence that the women were actually residents of Michigan at the time the adoption was granted, but the trial judge refused to admit the evidence, and rejected Congleton’s motion to reopen the evidence or reconsider its decision after the court had announced its custody award.

On appeal, Congleton again attacked the validity of the Illinois adoptions, arguing that the women had defrauded the Illinois court by claiming to be Illinois residents when they were not, so the Illinois court did not actually have jurisdiction to grant the adoptions under Illinois law.  The Court of Appeals, in a new per curiam opinion, held that Congleton had waived any argument as to the underlying validity of the Illinois adoptions by failing to raise the jurisdictional issue as an affirmative defense during the initial phase of this proceeding.

In addition, the court noted that even were the issue not waived, judicial estoppel would preclude Congleton from repudiating the position she took under oath in the Illinois adoption proceeding.  “In this proceeding,” wrote the court, “defendant now claims that she lied to the Illinois courts and that she and plaintiff were not actually residents of Illinois during the time before the entry of the adoption orders.  This argument is disingenuous in that it allows defendant to enjoy the benefits of the adoption orders for as many years as she could while now attempting to nullify the effect of the adoptions because she deems it advantageous to her.  This appears to be the exact type of ‘fast and loose’ play with the legal system judicial estoppel is designed to prevent.”

The court observed that Congleton had voluntarily submitted to the jurisdiction of Illinois, had sworn that she was an Illinois resident in that proceeding, and had “requested from those very courts the adoptions which she and plaintiff were awarded.”  Taking together the findings of waiver and the application of judicial estoppel, the court of appeals held that Congleton “fails to show that the trial court made any error in refusing to allow defendant to advance the argument that the Illinois courts did not have jurisdiction over her at the time the adoptions were entered.  We therefore conclude that the trial court did not abuse its discretion in denying defendant’s motion to reopen proofs.  Nor did the trial court abuse its discretion in denying defendant’s motion for reconsideration.”  The court awarded Giancaspro her court costs.

The juxtaposition of the two cases shows the unusual situation that Michigan’s ban on same-sex marriage produces.  A woman who was legally married to the birth mother at the time the child was born is treated as a legal stranger to the child, barred from even seeking custody, while a woman who adopted the children of her unmarried same-sex partner in an out-of-state adoption proceeding is awarded custody “on points” due to the powerful full faith and credit obligation to recognize adoption judgments from sister states.  If, as anticipated, the federal court rules in Deboer that Michigan’s refusal to recognize out-of-state same-sex marriages violates the 14th Amendment, this anomaly of Michigan family law may be corrected, although the traditional family law slant in favor of biological parents may still affect the outcome in particular cases.