A lesbian mother’s quest for joint custody of the children she had adopted in Georgia and raised together with her former same-sex partner, the children’s biological mother, took a step closer to the Supreme Court on December 14, when the high court granted her a stay of an adverse ruling from the Alabama Supreme Court.
V.L. is asking the Supreme Court to overturn a September 18 ruling by the Alabama Supreme Court, which refused to recognize the validity of the adoptions, having filed her petition with the court on November 16.
The Supreme Court justices did not explain their grant of the stay, which is not unusual. However, as Chief Justice John Roberts explained in 2012, in an “in chambers” ruling on such a petition, a stay of a lower court decision while the Supreme Court is deciding whether to grant review is warranted when there is “(1) a reasonable probability that this Court will grant certiorari, (2) a fair prospect that the Court will then reverse the decision below, and (3) a likelihood that irreparable harm will result from the denial of a stay.”
The high court did state that if it denies review in this case, the stay will terminate automatically, while if it grants review, the stay will be in effect as long as the case is pending before it.
The Alabama Supreme Court’s refusal to recognize the Georgia adoption meant that V.L. had no legal standing to seek joint custody or visitation in the Alabama circuit court, and that an interim visitation order issued by the circuit court and affirmed by that state’s court of appeals was terminated, disrupting V.L.’s relationship with her children.
Unless the Alabama Supreme Court’s ruling was stayed pending appeal, V.L. and her children could suffer a prolonged period of separation, an injury for which reparation could not be made through damages or other retrospective judicial relief.
Perhaps more to the point, the Alabama Supreme Court’s refusal to recognize the Georgia adoption was a clear departure from the constitutional requirement that sister-state court judgments be accorded “full faith and credit.” The Alabama court did this by opining that the Georgia trial judge had misconstrued Georgia’s adoption statute when granting the adoption and thus that court did not have “jurisdiction” –– that is, legal authority –– to grant the adoption. This is a novel twist on the concept of jurisdiction, and a clear departure from the Supreme Court’s past interpretations of the Full Faith and Credit Clause.
A dissenting Alabama Supreme Court justice argued that the ruling theoretically opened up to challenge any out-of-state adoption when a majority of the Alabama Supreme Court disagreed with how the courts of another state interpreted their adoption statute, leading to uncertainty in an area of the law where courts have traditionally stressed the need for certainty and stability –– child custody.
By granting V.L.’s stay application in this case, the Supreme Court is signaling the likelihood that it will grant review and the strong possibility that it would reverse the Alabama Supreme Court’s ruling, based on Chief Justice Roberts’ 2012 explanation.
Briefs from the respondent in opposition to V.L.’s petition for review are normally due at the high court a month after a petition is filed –– which would be this week –– though the court can grant an extension. Subsequent consideration of the petition at a private conference of the court would likely mean a decision on granting review a few months down the line. Review would normally have to be granted by mid-January for a case to be argued in the court term that ends in late June.
Unless the justices feel particular urgency to take up this case, it might not be argued until the fall of 2016, with a decision late in 2016 or early in 2017. The temporary stay reduces the urgency, if it means that V.L.’s temporary visitation order goes back into effect — a conclusion that is not certain until the lower Alabama courts address the scope of the stay.
V.L. is represented by the National Center for Lesbian Rights, cooperating attorneys from the Washington office of Jenner & Block LLP, and Birmingham, Alabama, counsel Traci Owen Vella of the Vella & King firm and Heather Fann of Boyd, Fernambucq, Dunn & Fann, P.C. The lead Jenner & Block attorney on the case is Paul M. Smith, who argued the appeal in Lawrence v. Texas that resulted in the Supreme Court striking down laws against consensual gay sex in 2003.