As with other recent decisions of the Supreme Court of Georgia and the Georgia Court of Appeals on family law matters, I will post a summary of the opinion discussed below, but I wanted to share the information from today’s Fulton County Daily Report article on this case:

Law still murky in child custody battles between same-sex couples who have separated

A DIVIDED GEORGIA Supreme Court on Monday sidestepped a case that could have clarified how the law handles custody battles between homosexual couples in which one partner is the biological parent of a child and the other partner has adopted the child.

Without explanation, the court refused to take up a biological mother’s effort to invalidate her ex-partner’s adoption of the mother’s now-7-year-old child. High court rules require that discretionary cases be heard only if at least four of the seven justices agree to take them up.

Justices George H. Carley, Hugh P. Thompson and Harold D. Melton dissented from the decision not to hear the case.

The issue in the case is not whether gay people can adopt—according to the lawyers in the case, Georgia law does not forbid that.

But in an eight-page dissent, Carley said the issue of what some call “second parent” adoptions was too important to ignore.

“Whether a person who has never been, and indeed cannot be, a spouse of the living parent may nevertheless adopt the child, while that parent still retains all her rights, is an important issue,” he wrote. “It has far-reaching implications with respect to potential adoptions by either the same-sex or opposite-sex partner or friend of an unmarried living parent.”

At issue is a custody battle between Sara Leann Wheeler and Melody Doss Wheeler, former domestic partners now fighting over custody of Leann Wheeler’s biological child.

According to an order by DeKalb County Superior Court Judge Anne Workman, Melody and Leann Wheeler had been domestic partners for about two years when Leann gave birth in January 2000 after an artificial insemination. In 2002, Workman approved Melody Wheeler’s adoption of the child.

When the Wheelers broke up, Workman in 2005 denied Leann Wheeler’s petition to set aside the adoption, saying the adoption was valid under Georgia statute.

Workman noted in an April 11, 2005, order that a Georgia statute that allows for adoption by someone who is not a stepparent or relative of the childdirects that except as authorized elsewhere in the law any living guardian or parent of the child must have surrendered her rights prior to the adoption. But, she wrote, another statute gave her discretion by listing the surrender of rights as one of the items which must be provided “or its absence explained” and found that Leann Wheeler’s consent to the adoption was sufficient to explain the absence of the surrender.

Leann Wheeler appealed, and the Court of Appeals of Georgia granted a discretionary application to hear the case. Last June, Presiding Judge Gary Blaylock Andrews, Chief Judge Anne Elizabeth Barnes and Judge Debra H. Bernes heard oral argument.

But Oct. 13, the panel dismissed the appeal as having been “improvidently granted.”

“It’s called dropping a hot potato,” said Anthony M. Zezima, who represents Leann Wheeler.

After the appeals court dropped the case, Leann Wheeler sought help from the Supreme Court, but she lost Monday.

In his dissent, Carley, who was the only dissenting justice from the court’s 1998 ruling that struck down Georgia’s laws criminalizing sodomy, wrote that Melody Wheeler did not have any valid claim for adoption.

Melody Wheeler was not a stepparent under Georgia law as she was not Leann Wheeler’s spouse, wrote Carley, citing both a Georgia statute and the state constitutional provision banning same-sex marriage upheld by the court last year.

Carley added that another statutory provision allowing for adoption by someone who is not a stepparent requires the parent’s rights to be surrendered or terminated, which had not happened in this case. He said the law forbids using the biological parent’s consent to get around that.

Legal clarity

Zezima said policies of sealing records in adoption cases make it difficult to know how often the issue comes up or how judges are handling it. “There’s no way of knowing how many same-sex adoptions are granted in the state of Georgia,” he said.

But at least some judges in DeKalb, Fulton and Athens-Clarke counties are allowing them, he said. Because the initial adoption proceedings are generally not adversarial, he said, it’s only when the parties split that an appellate court would have an opportunity to review such second-parent adoptions.

Zezima said because his case presented such an opportunity, the court should have taken it. “The trial courts need guidance,” said Zezima.

Nora Kalb Bushfield, one of Melody Wheeler’s attorneys, acknowledged that even within DeKalb the availability of second-parent adoptions in same-sex couples depends on the judge drawn. While cautioning that she was “not a member of the gay and lesbian community” and didn’t speak for it, she said she had close relationships with gay and lesbian couples and believed there is some ambivalence on getting more legal clarity.

“The consensus that I see is there is a desire to have clarity, but I think there’s a fear because we’re in Georgia and a very conservative state that if it is statutorily defined it may be defined in a way that they would not like,” said Bushfield. “It’s that old thing of it’s better to ask forgiveness than permission.”

Gregory R. Nevins, senior staff attorney at Lambda Legal Defense and Education Fund in Atlanta, said he wasn’t really looking for more guidance from the court on the issue. Lambda’s Jack H. Senterfitt also had represented Melody Wheeler in the matter, but Nevins said Senterfitt recently had retired.

Nevins said the state high court was right to dispense of the case quickly given its nature. “A lot of this case is about the finality of adoptions,” he said.

Saying the court should rule on the case after full briefing and discussion, Zezima and he’ll ask the justices to reconsider.

But Bushfield said that the outcome is in the best interests of the Wheelers’ child, who she said had already established a parent-child relationship with her client. “I don’t think we can lose sight of the fact that regardless of who the parents are we have to keep the child’s best interests in the forefront.”

The case was Wheeler v. Wheeler, S07C0299.

SOURCE: Fulton County Daily Report (requires subscription)