Georgia's 2004 constitutional amendment banning same-sex marriage left some issues up in the air. Specifically, the amendment did not directly address whether adoption by same-sex couples is also illegal. In a decision in mid-July, the Georgia Court of Appeals sidestepped an opportunity to resolve the issue.
The case arose out of the break-up of a lesbian couple. Before the break-up, one of the women was artificially inseminated. After she gave birth, she wanted her partner to also be a legal parent. Her partner legally adopted the child in Fulton County in what is known as a "second-parent" adoption.
After the couple broke up, the biological mother went back to Fulton County and attempted to have the adoption by her former partner annulled. The court refused because the time limit to challenge the adoption had expired. In the meantime, the former partner started a separate proceeding in the Henry County court and filed for custody of the child.
In the Henry County case, the biological mother argued that because same-sex marriages are illegal under the Georgia Constitution, and because Georgia does not allow unmarried couples to adopt children, the adoption was illegal and her former partner had no right to custody. The Henry County court agreed with the biological mother, but the appeals court reversed that decision.
The Court of Appeals reversed the lower court's annulment of the adoption on the narrow grounds that because the adoption's legality had been upheld by the Fulton County court, the Henry County court had no power to second-guess that decision. The appeals court expressly stated they were not addressing the overall issue of the validity of second-parent adoptions in Georgia.
The decision of the court of appeals leaves Georgia same-sex couples who have adopted children in a state of limbo. The court followed a well-established rule in deciding the case on the narrowest possible grounds. But the court's decision means that the question of the validity of same-sex adoptions in Georgia is almost certain to come before the courts again.
Source: Georgia Voice, "Georgia appeals court upholds second-parent adoption in lesbian 'divorce' case," Dyana Bagby, July 18, 2012