Court OKs Adoption by Unwed Pairs

The state Supreme Court Monday upheld California’s practice of allowing adoptions by unmarried partners, in a ruling with wide impact on how parents and families will be defined.

At stake was the validity of up to 20,000 existing adoptions statewide, many by gay and lesbian couples. Critics said the ruling would trivialize the bonds of family, but gay-rights advocates hailed it.

“A negative decision would have been absolutely devastating,” said Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco, which helped pioneer the practice of second-parent adoptions nearly two decades ago.

“This decision was not about creating new rights or expanding adoption rights.” Minter said. “It was about protecting existing rights and protecting the validity of thousands of adoptions that have been granted in California since 1984.”

Because adoption proceedings are confidential, it is not known precisely how many have taken place, but one expert said they occur at a rate of between 5,000 and 6,000 a year. The numbers include not only some children conceived through artificial insemination, but also others adopted by their grandparents.

The ruling preserves those and future adoptions, and comes on the heels of another victory for gay-rights proponents: a U.S. Supreme Court ruling that bans on gay sex are unconstitutional.

The case before the state court involved two women, identified only as Sharon S. and Annette F., who began a long-term relationship in 1989 after meeting at Harvard’s graduate school of business. During the relationship, Sharon conceived two sons through artificial insemination from an anonymous donor.

Annette adopted the first boy, Zachary, now 6, and was in the process of adopting the second child, Joshua, 4, when the couple’s relationship went sour. Annette moved out of their home in August 2000 when the birth mother asked her to leave.

Annette’s adoption of the 6-year-old is final. The second adoption, however, has yet to be completed. Sharon had given her consent to the adoption of the 4-year-old, but sued to withdraw that consent.

When the case went to court, a trial judge in San Diego ruled that the birth mother could not withdraw her consent because she had missed a legal deadline.

But the 4th District Court of Appeal disagreed, ruling that California’s second-parent adoption process had never been established by state law.

The process had been set up by administrative agencies that had no legal authority to approve such adoptions except in cases involving married couples, the appeals court ruled.

That ruling alarmed many gay parents because it threatened to invalidate thousands of adoptions.

Monday’s decision reversed the lower court ruling and remanded the case to the lower court for further proceedings. The trial judge will make the final decision on the adoption.

“Unmarried couples who have brought a child into the world with the expectation that they will raise it together, and who have jointly petitioned for adoption, should be on notice that if they separate, the same rules concerning custody and visitation as apply to all other parents will apply to them,” according to the majority ruling written by Associate Justice Kathryn Mickle Werdegar.

In dissent, Associate Justice Janice R. Brown criticized the majority for “trivializing family bonds” and subscribing to “the-more-parents-the-merrier view of parenthood.” Brown wrote that it was wrong to approve an adoption in which the prospective parents lived apart.

“The all-encompassing nature of parenthood renders eminently reasonable any legislative provision requiring that adopting parents share a common residence with each other and the adoptive child. Parenthood requires more than a telephone book and a checkbook.”

John L. Dodd, an attorney for the birth mother, said the results of Monday’s ruling may be dangerous, and have “strong ramifications down the road.”

“This opinion opens the door to group adoption,” Dodd said. “A child could have three parents, or four parents, or 87 parents, as long as some judge somewhere thinks it’s a good idea.”

Proponents of the majority’s decision pointed out that there already exist circumstances under which some children have more than two “parents,” particularly with a view to issues involving inheritance. That circumstance involves children who are born to a married couple who later divorce and are then adopted by a stepparent in a second marriage.

Joan Hollinger, an expert on adoption law at UC Berkeley, said that even with such arrangements already in existence, it was ridiculous to argue that courts and society would sanction the adoption of a child by multiple parents, as opponents of Monday’s decision had suggested.

“This seems like nonsense,” Hollinger said. “Even if you had a group of people who wanted to adopt the same child, you would still need to get a court to say this is a nifty idea. Our society is not at this point.”

Charles A. Bird, the attorney representing Annette F., the partner who applied to adopt Sharon S.’s children, said Monday’s ruling lifted a great weight off the shoulders of worried parents by reversing an appellate court decision that would have “posed a threat to some completed adoptions.”

“The implications are very straightforward,” he said. “It holds that second-parent adoption is a lawful and proper process in California.”

Bird contended that he was fighting for Annette’s adoptive parental rights, but in doing so found himself also fighting for the rights of other Californians whose adoptions might have been invalidated had the appellate ruling been affirmed.

“These are two people who agreed on the conception of a child, and agreed they would raise it together. And when the child arrived, they filed papers in court, adoption papers, that said they both wanted to be Joshua’s parents. And then they broke up,” Bird said. “But my client Annette still wants to be Joshua’s parent. Sharon disagrees. And so all of this fight about whether this kind of adoption is a legal kind of adoption came about because it was a way for Sharon to win her disagreement.”

Judith E. Klein, the attorney representing the child, believed it was in the best interest of the child that he not be adopted by Annette, because it was not healthy to subject the child to the conflict between the two women.

She added that the high court took the easy road by upholding second-parent adoptions because “it did not want to open the door to undoing other adoptions that had been finalized.”

*

Times staff writer Bettina Boxall contributed to this report.