Courts Wisely Moving To Protect Adopted Kids

While living in Illinois, with her partner, Diane Giancaspro, Lisa Congleton adopted three children from China.

Illinois allows same-sex couples to jointly be parents, and the couple successfully petitioned a court to designate them equal co-parents. After they moved to Michigan, the women broke up and fought over custody.

In such traumatic situations, courts are supposed to act as a wise, steady protector, shielding children as much as possible from the storm.

That's not what initially happened. And the mothers remain locked in a custody tug-of-war.

There is good news, though: The case recently produced a landmark Michigan appeals court ruling that not only protects all the children of the state's gay parents, but also stands as an important legal guidepost for courts elsewhere.

The appeals court affirmed that the U.S. Constitution's Full Faith and Credit Clause requires that states respect each other's adoption decrees.

The must-watch case got under way in August 2007, when Giancaspro asked a Michigan family court "for custody, support and parenting time" under the state's custody laws.

Her ex objected, arguing that recognizing Giancaspro as a legal parent was contrary to Michigan public policy, the court ruling says.

Michigan's Constitution was amended in 2004 to say that male-female marriages "shall be the only agreement recognized as a marriage or similar union for any purpose."

A Berrien County judge ruled the adoptions valid, but in a shocking twist declared them unenforceable in Michigan because the women couldn't have married or jointly adopted there.

"(The ruling) created a situation in which children of same-sex couples in Michigan were essentially excluded from the protection of the courts," said Camilla Taylor of Lambda Legal, an attorney representing Giancaspro.

"How do you make clear in a public hospital that you are the person authorized to make medical decisions as a parent? How do you enroll your child in a public school? These are state agencies charged with ascertaining whether someone has a legal parent-child relationship.

It was obviously a horrifying prospect," Taylor added.

The Michigan Court of Appeals reversed the lower court, declaring, "The only relevant consideration ... is each individual party's established relationship as an adoptive parent with the children, not their relationship with each other."

The dispute was thrown back to family court to be treated like any other custody dispute.

With the constitutions of 29 states banning either gay marriage or any type of legal recognition for same-sex couples, it's heartening that the Michigan court drew an important line: Such a ban targets relationships between adults. But adoption remains a relationship between an adult and a child, and states must honor adoption decrees.

Likewise, in late December, the Ohio Supreme Court rejected a lesbian's argument that Ohio's anti-gay amendment invalidated a court-approved custody agreement she had signed with her partner before their breakup.

And in 2007, the U.S. Court of Appeals for the 10th Circuit struck down Oklahoma's "Adoption Invalidation Law," which refused to recognize out-of-state adoptions by "more than one individual of the same sex."

Oklahoma also was ordered to give a child who had been born there a birth certificate listing both of her California adoptive mothers as her parents.

Regardless of whether states are ready to respect gay couples, they have a responsibility to protect adopted children. And that, as the Michigan court concluded, means honoring their ties to their legal parents.

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues. To find out more about Deb Price and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com.

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