SAN DIEGO -- A California appeals court struck down second-parent adoptions on Friday, ruling as illegal an administrative procedure commonly used by thousands of gay couples to adopt the children of their partners, The Los Angeles Times reports.

Gay civil rights advocates and the American Civil Liberties Union immediately denounced the decision as endangering thousands of families who have used second-parent adoptions to give legal stability to children living in gay households. They vowed to appeal the decision.

"What this means is that there will be children who will lose health benefits, Social Security payments, inheritances, visitations with beloved parents and all the things that flow from adoption," Debbie Wald of the National Center for Lesbian Rights told the newspaper.

The appellate court "takes no account of the havoc that (the ruling) will have on families who've guided their lives under the principle that they're both legal parents," Kate Kendell of the National Center for Lesbian Rights in San Francisco told the San Francisco Chronicle.

Kendell, whose organization works with lawyers who arrange second-parent adoptions, estimated there have been between 10,000 and 20,000 such adoptions completed over the last 15 years - the vast majority by same-sex couples, who have no other way to adopt children.

"It's outrageous," said Pat Logue, counsel for the Lambda Legal Defense & Education Fund. "This decision destabilizes the lives of thousands of children, exactly the opposite of what adoption is meant to do."

The court pointed to new option which will be available Jan. 1, which will allow registered domestic partners to adopt each other's children through the streamlined procedure known as step-parent adoption, just as married couples do.

But advocates note the new law covers only existing DP arrangements. Couples who have broken up or moved out of state since adopting a child, and those in which the biological parent has died, will not be able to revive the adoption without getting married, which same-sex couples cannot do.

Children impacted by the ruling "won't have the right to inherit from the adoptive parent, won't have the right to get pension benefits or Social Security," said attorney Katina Ancar of the National Center for Youth Law. "You can't enroll a child in school and may not be able to take the child out of the country. If you're not a legal parent or guardian, you can't even consent to necessary medical care."

The case involved a prominent lesbian couple living in San Diego, Annette Friskopp and Sharon Silverstein. Silverstein bore a son by artificial insemination in 1996, and Friskopp won Superior Court approval for a second-parent adoption. Silverstein bore another son in June 1999, and the couple again petitioned for adoption, but when they broke up last year, Silverstein sought to withdraw her consent.

A Superior Court judge said she had waited too long, but the appellate court ruled that the county Department of Social Services did not have the legal authority to approve such adoptions, saying they had no basis in California law.

California law specifies that an unmarried birth parent who wants to give up a child for adoption must surrender parental rights permanently and cannot agree to a co-parenting arrangement, said the opinion by Justice James McIntyre.

"The role of the courts," wrote McIntyre, "is to interpret and apply the existing statutes in accordance with the Legislature's expressed intention, not to rewrite the statutes or question the Legislature's wisdom."

http://www.gay.com/news/article.html?2001/10/29/2

by Ann Rostow
Gay.com / PlanetOut.com Network

The California Fourth Appellate District in San Diego issued a ruling on Thursday that casts doubt on the legality of all second-parent adoptions in the state, and gay rights lawyers say they will challenge the decision.

A lesbian plaintiff, Sharon Silverstein, who was attempting to block the adoption of her son by her former partner, presented the winning argument to the court.

Silverstein and her partner broke up while the second-parent adoption was already underway. When a lower court refused to stop the proceedings, Silverstein made the case that the entire second-parent adoption process did not conform to California adoption statutes, which technically require birth parents to cede all rights to adoptive parents.

Although the letter of the law indeed holds adoptions to this "all or nothing" standard, California courts have used an amended system for over a decade which creates an exception and allows both a birth parent and an adopted parent to share legal rights. Some 15,000 to 20,000 gay men and women have adopted children under this common mechanism.

The court's ruling was unexpected, not just because it favored Silverstein in her feud with her ex-partner or because it struck down the procedure used for second-parent adoptions. It also appeared to state that existing court-ordered adoptions were no longer valid.

The court took note of AB25, the state domestic partner bill signed into law earlier this month, which allows registered domestic partners to adopt under the state's step-parent adoption procedures.

"Couples who have in the past attempted to adopt children," wrote the 2-1 majority, could "ratify those adoptions" once AB25 takes effect in January.

"Ratifying" adoptions through AB25, however, will not be possible for parents who are no longer with their partners, who no longer live in California, or who fall into a range of other situations.

California Assemblywoman Carole Migden, D-San Francisco, said on Monday she would promote legislation to grandfather existing second-parent adoptions in light of the court's ruling.

"The paramount role of any family law is to protect the interests of children and existing parental bonds," said Migden. "The appeals court failed to place the interests of children at the center of its decision-making. Now it is imperative for the Legislature to step in to protect these children."

Posted October 29, 2001