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Second-parent adoptions are valid, state court says
Boalt lecturer — an adoption-law expert — and students helped win high-profile case

| 27 August 2003

Thousands of California families are breathing easier in the wake of an Aug. 4 California Supreme Court decision in a high-profile case concerning second-parent adoptions.

Reversing an earlier ruling by an appeals court in San Diego, the state Supreme Court affirmed the validity of second-parent adoptions, thus providing key legal protections to many children raised by same-sex couples. Boalt Hall lecturer Joan Hollinger and a handful of law students helped secure the victory by providing legal research for amicus briefs challenging the finding of the lower court in Sharon v. the Superior Court of San Diego County.

Under a second-parent adoption, a birth or adoptive parent retains parental rights while his or her partner becomes the child’s second legal parent. Because same-sex couples are not currently permitted to marry, many such couples in California have used a second-parent adoption as the way to establish a secure legal relationship with their children — thus protecting the children’s rights to inheritance, health insurance, child support, and other legal benefits. Courts throughout the country have routinely granted second-parent adoptions in other situations, too, such as when a single adult who has adopted a child later seeks to make his or her partner the child’s second legal parent.

The San Diego case grew out of a custody battle between a birth mother, Sharon S., and her partner, Annette F., who separated while a second-parent adoption proceeding (to make Annette a legal parent of their second son) was still in progress. After the breakup, Sharon asked a court to dismiss Annette’s adoption petition. When the court refused, she took the case to the Court of Appeal. In October 2001, that court ruled 2-1 to block the adoption; additionally, it suggested that second-parent adoptions may no longer be approved under California law and, even more radically, that thousands granted in the past — some of them years ago — may be invalid.

Raising a red flag
The decision was “a wakeup call,” says Boalt’s Hollinger, for people around the country who had used this mechanism to gain legal recognition for their family relationships. The appeals-court ruling — particularly its threat to already finalized second-parent adoptions — raised a red flag for Hollinger, an expert in adoption law and policy. “I knew that had to be fundamentally incorrect,” she says. “California has strong laws that uphold the finality of adoptions….You can’t unwind a family that has come into existence in good faith and in reliance on the laws as applied for 15 years or more by lower courts throughout the state.”

Several students in Hollinger’s “Children and the Law” course started working on the case soon after the appeals court rendered its decision. To help develop arguments on a series of issues relevant to the complex case, they pored over state legal history for cases dealing with adoption, family law, commercial transactions, inheritance, and more.

“My students and I found lots of cases from the late 19th and early 20th centuries, mostly concerning inheritance,” Hollinger recalls. “We were able [with these findings] to develop a very well-researched argument that the courts, which had granted second-parent adoptions in California since the 1980s, did have the authority to do so.”

She explains that California, like a few other states, has been saying that adoption law should be applied liberally — that is, insisting that essential legal requirements be met to finalize an adoption, while waiving more fungible rules, at times, to match the needs of particular families: “Our students were able to develop a very substantial list of cases in California legal history that moved in the direction of a liberal construction of adoption laws in order to promote the interests of children.”

Hollinger notes that the San Diego case involved a contentious family dispute, and that the original lawyers were not well versed in adoption law. “Bad cases often produce bad legal results,” she says. This time, surprisingly, “we actually have an excellent result arising from what was originally a bad case.”

The decision of the California Supreme Court in this closely watched and highly publicized case is only the eighth or ninth nationwide in which an appellate court has affirmed the validity of properly executed second-parent adoptions. Most of the Boalt students who worked on the case have graduated, Hollinger says. “I’m really sorry some of them are not here to realize what an impact they’ve had on California law.”