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.

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.