News
Juvenile
Feb. 25, 2002
Children Deserve Protection Of Second-Parent Adoption
Forum Column - By David A. Lash and Michael N. Feuer - The California Supreme Court has before it a case that rests not simply on the notion of family values but on the value of families. The legality of perhaps thousands of parent-child relationships could be at stake in Sharon S. v. Superior Court .
Forum Column
By David A. Lash and Michael N. Feuer
The California Supreme Court has before it a case that rests not simply on the notion of family values but on the value of families. The legality of perhaps thousands of parent-child relationships could be at stake in Sharon S. v. Superior Court.
When her son Joshua was born, Sharon consented to the creation of a legally recognized parent-child relationship between Joshua and her partner, Annette, through a 15-year-old practice known as a second-parent adoption. Because the birth father was an anonymous sperm donor, Sharon wanted to create for her son the security and benefits of a two-parent family. Second-parent adoptions, typically accomplished by using Judicial Council and California Department of Social Services forms, enable a birth or adoptive parent to retain parental rights while consenting to a legal parent-child relationship for a second parent.
But Sharon S. challenges this long-accepted and invaluable practice. When the relationship between Sharon and Annette deteriorated, Sharon tried to set aside the adoption agreement. And by a 2-1 margin, the Court of Appeal ruled that such an adoption could not proceed because second-parent adoptions are not statutorily authorized, thereby casting doubt on the validity of thousands of similar proceedings.
By invalidating the adoption proceedings in Sharon S., the court virtually dismissed the legal basis for second-parent adoptions found in a 1925 California Supreme Court decision, Marshall v. Marshall. In Marshall, the court validated such an adoption, a husband's adoption of his wife's biological child, even though she retained full parental rights. The court so held notwithstanding a statute providing that birth parents of an adopted child lose those rights, and absent explicit legislative authority for such an adoption. The Supreme Court instead focused on the laudable goal of promoting the "closest conceivable counterpart of the relationship of parent and child."
Over a strong dissent, the Sharon S. majority brushed aside this touchstone of all adoption statute interpretation - the best interests of children. Recently, the American Academy of Pediatrics confirmed that these second-parent adoptions are generally in the best interest of the affected child.
"Children who are born to or adopted by one member of a same-sex couple deserve the security of two legally recognized parents," the Academy announced, basing its conclusion on studies demonstrating that children of gay and lesbian parents are socially and psychologically as well-adjusted as peers with heterosexual parents.
Thankfully, the California Supreme Court granted review of Sharon S. At least for now, those with incentive to undo second-parent adoptions cannot cite this opinion to escape child support obligations by claiming they have no legal relationship with the child. Health care providers cannot disentangle family relationships so as to limit dependent coverage. Pension programs cannot challenge beneficiary status, taxing authorities cannot try to test dependent deductions and relatives cannot contest inheritance claims, all of which may occur if the best interests of children of second-parent adoptions are not protected. However, if Sharon S. is upheld, arguments such as these remain plausible.
Consider the low-income families who cannot afford the services of an attorney to wade through these issues. If health coverage is terminated, or if a birth parent dies and the child is declared an orphan because the second parent's rights are denied, a child of limited means will be without the resources to protect his or her best interests.
In recognizing the benefits of having parents with all the legal rights and obligations necessary to provide for their children, important new state legislation expands the adoption possibilities for at least some, but not all, prospective parents and children. AB25 allows some unmarried couples to register as domestic partners. Among other privileges, they then may be awarded full parental status through step-parent adoption proceedings.
However, many affected second parents will not qualify for status under this legislation. If they live out of state, live apart, are heterosexual and under 62 years old, or choose to not register as domestic partners for a myriad of reasons, they and their families will be without this protection.
The Legislature should continue on the course that began with the passage of AB25 and recognize the legality of existing second-parent adoptions. In addition, the Legislature needs to assure the continuing viability of this procedure for those who cannot utilize AB25. Preserving family structures and securing the best interests of children must be the overriding goal.
In the meantime, the California Supreme Court, ideally led by Marshall and the best interests of the state's children, should affirm the validity of second-parent adoption proceedings. The court has never mattered more for families who have relied on second-parent adoption proceedings.
David A. Lash (pictured) is the executive director of Bet Tzedek Legal Services in Los Angeles. Former City Council member Michael N. Feuer is of-counsel with Morrison & Foerster in Los Angeles.
By David A. Lash and Michael N. Feuer
The California Supreme Court has before it a case that rests not simply on the notion of family values but on the value of families. The legality of perhaps thousands of parent-child relationships could be at stake in Sharon S. v. Superior Court.
When her son Joshua was born, Sharon consented to the creation of a legally recognized parent-child relationship between Joshua and her partner, Annette, through a 15-year-old practice known as a second-parent adoption. Because the birth father was an anonymous sperm donor, Sharon wanted to create for her son the security and benefits of a two-parent family. Second-parent adoptions, typically accomplished by using Judicial Council and California Department of Social Services forms, enable a birth or adoptive parent to retain parental rights while consenting to a legal parent-child relationship for a second parent.
But Sharon S. challenges this long-accepted and invaluable practice. When the relationship between Sharon and Annette deteriorated, Sharon tried to set aside the adoption agreement. And by a 2-1 margin, the Court of Appeal ruled that such an adoption could not proceed because second-parent adoptions are not statutorily authorized, thereby casting doubt on the validity of thousands of similar proceedings.
By invalidating the adoption proceedings in Sharon S., the court virtually dismissed the legal basis for second-parent adoptions found in a 1925 California Supreme Court decision, Marshall v. Marshall. In Marshall, the court validated such an adoption, a husband's adoption of his wife's biological child, even though she retained full parental rights. The court so held notwithstanding a statute providing that birth parents of an adopted child lose those rights, and absent explicit legislative authority for such an adoption. The Supreme Court instead focused on the laudable goal of promoting the "closest conceivable counterpart of the relationship of parent and child."
Over a strong dissent, the Sharon S. majority brushed aside this touchstone of all adoption statute interpretation - the best interests of children. Recently, the American Academy of Pediatrics confirmed that these second-parent adoptions are generally in the best interest of the affected child.
"Children who are born to or adopted by one member of a same-sex couple deserve the security of two legally recognized parents," the Academy announced, basing its conclusion on studies demonstrating that children of gay and lesbian parents are socially and psychologically as well-adjusted as peers with heterosexual parents.
Thankfully, the California Supreme Court granted review of Sharon S. At least for now, those with incentive to undo second-parent adoptions cannot cite this opinion to escape child support obligations by claiming they have no legal relationship with the child. Health care providers cannot disentangle family relationships so as to limit dependent coverage. Pension programs cannot challenge beneficiary status, taxing authorities cannot try to test dependent deductions and relatives cannot contest inheritance claims, all of which may occur if the best interests of children of second-parent adoptions are not protected. However, if Sharon S. is upheld, arguments such as these remain plausible.
Consider the low-income families who cannot afford the services of an attorney to wade through these issues. If health coverage is terminated, or if a birth parent dies and the child is declared an orphan because the second parent's rights are denied, a child of limited means will be without the resources to protect his or her best interests.
In recognizing the benefits of having parents with all the legal rights and obligations necessary to provide for their children, important new state legislation expands the adoption possibilities for at least some, but not all, prospective parents and children. AB25 allows some unmarried couples to register as domestic partners. Among other privileges, they then may be awarded full parental status through step-parent adoption proceedings.
However, many affected second parents will not qualify for status under this legislation. If they live out of state, live apart, are heterosexual and under 62 years old, or choose to not register as domestic partners for a myriad of reasons, they and their families will be without this protection.
The Legislature should continue on the course that began with the passage of AB25 and recognize the legality of existing second-parent adoptions. In addition, the Legislature needs to assure the continuing viability of this procedure for those who cannot utilize AB25. Preserving family structures and securing the best interests of children must be the overriding goal.
In the meantime, the California Supreme Court, ideally led by Marshall and the best interests of the state's children, should affirm the validity of second-parent adoption proceedings. The court has never mattered more for families who have relied on second-parent adoption proceedings.
David A. Lash (pictured) is the executive director of Bet Tzedek Legal Services in Los Angeles. Former City Council member Michael N. Feuer is of-counsel with Morrison & Foerster in Los Angeles.
#337651
Catherine Cavella
Daily Journal Staff Writer
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