Trends in Family Law: Interstate same-sex adoption

November 2, 2011

Family Law Theme Month(Editor’s note: Because of the shifting terrain of family law on the national level, we’ll be looking at different trends in the field throughout the month of November)

Last month, the Supreme Court refused to hear the appeal from two unmarried same-sex adoptive parents.

The parents, Oren Adar and Mickey Ray Smith, legally adopted the child in the state of New York, but the child himself was born in Louisiana, wherefrom the birth certificate was also issued.

After a New York court issued the adoption decree, the Adoptive Parents sought to have the Louisiana Department of Health and Hospitals (DHH) reissue the child’s birth certificate with his new name and relationship with his adoptive parents.

The DHH, however, denied the parents’ request, citing a Louisiana law that allows only individuals or married couples to adopt, along with an opinion by the Louisiana attorney general penned in response to an inquiry from the DHH about this specific situation.

The parents then sued Darlene Smith, the state’s registrar and director of the DHH, claiming the refusal amounted to Louisiana not giving the New York adoption judgment full faith and credit, in violation of the Constitution.

After many appeals, the state finally won, leaving us back at the U.S. Supreme Court’s certiorari denial.

There’s been plenty of commentary on the wisdom (and lack thereof) of the opinion, but my point isn’t to add to it.

Instead, I hope to address the question of where the ruling leaves the law on the issue.

Both because the Supreme Court’s refusal to hear the case leaves the court of appeals opinion as strong precedent and because of increasing trend of same-sex adoption, the relevance of this case and (future ones like it) will only grow in the future.

In addition, the case highlights the complications arising from having different states with conflicting laws on marriage, parentage, and adoption.

Normally, of course, there are national-level regimes (such as the Uniform Interstate Family Support Act) and the Constitution’s Full Faith and Credit Clause to resolve such conflicts.

The federal Defense of Marriage Act (DOMA) and other similar case law have complicated interstate family law issues as they relate to same-sex couples.

This case stands as an example of such a complication.

When the facts here are viewed in a vacuum devoid of any social and cultural influences, it seems ridiculous that a state would refuse to update a birth certificate to reflect legal changes to a child’s name and parentage.

The financial cost to the state is inconsequential, but the impact to the child of having an inaccurate birth certificate is anything but.*

Unfortunately, such state law disparities do exist, and persist in complicating adoption proceedings in many circumstances.

For example, because of this ruling, a state like Louisiana that allows only married couples or individuals to adopt can refuse to update an adopted child’s birth certificate simply because the adopted parents are unmarried or are in a marriage unrecognized in the state (i.e. a same-sex marriage).

The easiest way for same-sex couples looking to adopt to avoid this is to avoid adopting children from such states, but considering the difficulty in adopting a child to begin with, such an action is far easier said than done.

Even if the child is adopted from such a state, though, the difficulties presented by the inaccurate birth certificate can be mitigated to an extent by advance preparation (such as finding acceptable documentation that can be substituted).

Even still, there are circumstances where no amount of preparation can overcome the difficulties faced with an inaccurate birth certificate.

These difficulties, regrettably, must be endured until national level action is taken either by the Supreme Court or Congress to reconcile state laws on the issue.

* An accurate birth certificate is required or important in legal situations such as inheritance, acquiring medical insurance, obtaining a social security number or a passport, and registering the child for school.