The Bird Whisperer

Foreign Adoption Alert – Dual Proceedings Can Be Problematic

In this New York Surrogate’s Court adoption proceeding where the two parties never married, petitioner, the father of the Cambodian child who is the subject of this adoption, sought to vacate the court’s prior order permitting respondent, the New york adoptive parent, to “re-adopt” a Cambodian orphan who was residing with her in New York, and to allow him immediate visitation as the father’s child, pursuant to a Cambodian adoption.

The respondent contended that the petitioner had relinquished his adoptive parental rights by a “letter” provided to the authorities in Cambodia, after which she obtained an order of adoption in Cambodia and a subsequent ex parte “re-adoption” order from the Surrogate’s Court in New York. Respondent also contended that the petition was dismissible under the “act of state” doctrine, whereby “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid,” because neither of the Cambodian adoptions were completed with a “Giving and Receiving” ceremony.

At trial, petitioner contended that he never legally relinquished his parental rights, and that the respondent’s “re-adoption” of the infant in New York was invalid because he was not served with notice of the proceedings.

The Surrogate’s Court granted the petition, recognized petitioner as the father, vacated its prior order permitting the respondent to adopt the infant, and granted the petitioner immediate visitation by finding that: (1) petitioner’s Cambodian adoption was valid; and (2) he remained the child’s father because his letter relinquishing his rights was invalid under New York law [DRL §115-b]. The Appellate Division affirmed (4-1) on grounds that: (1) because the respondent never completed her Cambodian adoption proceeding, her ex parte “re-adoption” proceeding in New York was a nullity; and (2) even if the respondent’s Cambodian adoption had been completed, New York was not obligated to recognize it pursuant to the “act of state” doctrine, as a foreign adoption involves private interests, in contrast to the act of a foreign state to give effect to its public concerns.

The Court of Appeals affirms, but for different reasons. The Court finds that, although the validity of the petitioner’s Cambodian adoption need not be questioned, the validity of petitioner’s relinquishment of his parental rights must be determined under New York law in accordance with its choice-of-law rules. In this instance, where the involved individuals petitioner, respondent, and the infant each resided in New York at the time of the Cambodian proceedings, New York’s interests are paramount, thus making its law controlling. In so holding, the Court determines that, because the petitioner never properly relinquished his parental rights under New York law, he remained the infant’s sole parent. Matter of Doe. Decided 2/16/10.

 

FAMILY LAW. ADOPTIONS. FOREIGN ORPHAN. “ACT OF STATE” DOCTRINE. APPLICABILITY.

Anne Hathaway Left catholic Church to Support Her Gay Brother

Anne Hathaway‘s family left the Catholic Church because of its intolerance of homosexuality. Anne grew up wanting to become a nun but shunned Catholicism when she learned her older brother, Michael, was gay.”

Hathaway says, “The whole family converted to Episcopalianism after my elder brother came out. Why should I support an organization that has a limited view of my beloved brother?”

Anne was nominated for an Oscar™ for Rachel Getting Married [’08]. She’s also co-starred in The Devil Wears Prada, The Princess Diaries, and Brokeback Mountain.

Risks of Using a Known Sperm Donor

Posted on January 28, 2010 by Gideon Alper -GayCouplesLawBlog.com –

Seattle University Law School professor Julie Shapiro had a interesting post this past weekend on why lesbians should think twice before using a known sperm donor.

Professor Shapiro points out what’s unique about a California where a lesbian couple split up five months after one woman gave birth to twins. Now they fight for custody.

Smith [the non-birth mother] is not simply opposed by Quale [her former partner, the birth-mother] but also by Wallace [the sperm donor], and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.

It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household. 

I agree. While Smith, the non-birth mother, might have a legitimate claim to keeping parental rights, I doubt the court will do anything other than award full parental rights to the birth mom and dad. Especially since the the lesbian couple split up just five months after the twins were born.

Federal Appeals Court: Louisiana Must Recognize Out of State Gay Adoption

Posted on February 18, 2010 by Gideon Alper – GayCouplesLawBlog.com –

The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn’t get an updated birth certificate from Louisiana. Back then, Louisiana said it didn’t have to recognize adoptions from other states that it wouldn’t perform itself.

The Court today said otherwise.

Why is This Case Important?

Because it’s about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don’t allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith–that they shouldn’t have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here’s why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

•First, it recognized that the Supreme Court has said that there are no “public policy exceptions” to the clause.

•Second, it disagreed with Louisiana’s argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana’s policy with New York’s.

•Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.
So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn’t face is DOMA, a federal allow that says specifically that states don’t have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won’t get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

Surrogacy decriminalized in Australia

Under reforms in Australia, legal parentage of a child born in surrogacy agreements will transfer from the birth mother to the parent or parents who commissioned the birth. This extends to same-sex couples.

An opposition bill that would see surrogacy continue to be illegal for same-sex couples was debated but it failed to pass.

The Australian State Parliament made the decision after a lot of debate.

Premier Anna Bligh [pictured] has defended her Government’s new surrogacy laws – saying same-sex couples and singles are already becoming parents through artificial insemination.

Ms. Bligh told Parliament it would be wrong to ban them from having a child through surrogacy.

“The time for putting our heads in the sand on this issue is over,” she said.