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|Ga. appeals court upholds second-parent adoption in lesbian 'divorce' case|
|by Dyana Bagby|
|July 18, 2012 17:47|
In a case that risked far-reaching consequences, the Georgia Court of Appeals recently upheld a second-parent adoption involving a lesbian couple, but avoided taking a stand on whether the state’s ban on same-sex marriage impacts the legality of second-parent adoptions overall.
First reported in the Fulton Daily Report, the case involves Nicole Bates and her former partner, Tina Bates. Nicole Bates became pregnant through an anonymous sperm donor in 2007 and she wanted her partner, Tina, to adopt the child so both could be legal parents.
The second-parent adoption was approved in Fulton County by Fulton County Superior Court Judge Ural Glanville. Although the couple did not live in Fulton County, their attorney said it would be easier to get a same-sex second parent adoption approved there.
In 2010, the couple broke up and the biological mother, Nicole Bates, went back to Judge Glanville and asked the adoption be voided. Judge Glanville told Nicole Bates that she did not file within the six-month time limit allowed to challenge adoption cases, so the second-parent adoption was still legal.
Not satisfied, Nicole Bates appealed the judge's decision to the Court of Appeals, which eventually dismissed the case. Nicole Bates went to the state Supreme Court seeking to void the adoption of her former partner, but the state Supreme Court also decided to not hear the case.
Tina Bates, the legal parent of the child for three years, filed for custody of the child in Henry County, where Nicole Bates was living with the child. When the Georgia Supreme Court would not hear her case, Nicole Bates entered a motion asking Henry County to dismiss Tina Bates' request, arguing that second-parent adoptions are not legal in Georgia between unmarried couples.
Henry County Superior Court Judge Brian Amero agreed with Nicole Bates, saying the 2004 amendment to the state's constitution banning same-sex marriage therefore made the couple's second-parent adoption illegal as well. Henry County ruled that Tina Bates “is a stranger to the child in the eyes of the law.”
Tina Bates appealed Amero's ruling to the Court of Appeals and through her attorneys argued that Amero could not make the ruling because it was a case that had already been resolved in Fulton County. There was no argument made about the legality of second-parent adoptions in Georgia by Tina Bates' attorneys. Those representing Tina Bates are Terri Sutton of Meadows & Macie in Stockbridge,Ga., and S. Samuel Griffin and Merritt McAlister of King & Spalding.
The Court of Appeals agreed with Tina Bates' attorneys, stating, “Tina argues only that the Fulton County judgment is conclusive of the validity of the adoption decree and, hence, her standing to petition for custody. About this, we think Tina is exactly right.”
Emily Matson of the Burton Law Firm in Rome, Ga., attorney for Nicole Bates, argued the court had jurisdiction to make a ruling because Georgia law does not allow second-parent adoptions for unmarried couples — and because gay people cannot be married in Georgia, all such adoptions are illegal.
The three-judge panel from the Georgia's Court of Appeals on this case, Bates v Bates, includes Judge Keith Blackwell. Blackwell is set to be sworn in as a state Supreme Court Justice on Thursday, July 19. Blackwell will replace Chief Justice George Carley, who in 2007 said he believed second-parent adoptions are illegal because of the state's ban on gay marriage.
The Court of Appeals stated frankly in its ruling, “We decide nothing in this case about whether Georgia law permits a 'second parent' adoption.”
The court added:
We decide only that the Fulton County judgment is res judicata [Latin for 'an issue already resolved by another court'] as to the validity of the adoption decree at issue here, and the Henry County court was not entitled to revisit the validity of the decree, at least not upon a challenge to that decree that is premised on the same grounds that Nicole pressed unsuccessfully in Fulton County. Accordingly, we reverse the judgment below and remand for further proceedings on the petition for custody consistent with this opinion.
Included in a final footnote, Blackwell seems to give a stinging rebuke of Nicole Bates' tactics as well, saying she seemed to "play the court for fools."
In the original proceedings on the petition for adoption, Nicole not only affirmatively invoked the jurisdiction of the Fulton County court, but her own lawyer prepared the decree that she now contends is void. To some of us, it seems that the present attack upon the validity of that decree amounts to an attempt to play the courts for fools, and that is the sort of thing that judges ought not tolerate.
Read the full ruing below.
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