KY Court Forbids Gay ’Stepparent’ Adoptions

by Kilian Melloy

EDGE Staff Reporter

Tuesday September 16, 2008

In a harsh ruling that underscores how constitutional amendments targeting gay families can be cited as justification to deny same-sex couples rights other than marriage, the Kentucky Court of Appeals has ruled that gays and lesbians must be excluded from step-parent style adoptions.

The ruling was handed down Sept. 13, reported the KY newspaper the Courier-Journal in a Sept. 16 story.

The reached unanimously by the Court of Appeals justices, who wrote an opinion excoriating one judge for having permitted, and others for possibly having permitted, such adoptions to take place.

The ruling said that only in cases of marriage could a step-parent be permitted legal adoption--and that is not a legal possibility in KY, where a state law against marriage equality is bolstered by a voter-approved constitutional amendment that specifically excludes gay and lesbian families from family recognition and its associated rights and protections, reserving marriage as a special right exclusive to heterosexuals.

The ruling said that Eleanor Garber, a family court judge, had permitted a step-parent adoption by the lesbian partner of a biological mother despite the law.

The ruling, which comprised 62 pages, was written by Judge Glenn Acree. In it, Acree wrote, "It is not this or any court's role to judge whether the legislature's prohibition of same-sex marriage" was "morally defensible or socially enlightened."

However, continued the opinion, it was also not the role of the judiciary "to craft any means by which the legal consequences of such a prohibition may be negated or avoided."

Acree excoriated Bryan Gatewood, one of the attorneys involved in the original case heard by Garber, saying Gatewood had employed a "stratagem so clearly contrary to statute and public policy," the article said.

Acree also wrote, "Unfortunately, the parties' sexuality preference or some other sympathy for their plight impaired the way legal professionals viewed the law."

"We cannot ignore--and the family court should not have ignored--the fact that the parties' relationship simply does not exist as a 'marriage' of any kind," agreed Judge Michelle Keller

In the particular case overseen by Judge Garber, the adoption will not be dissolved by the court decision because under state law, no adoption can be challenged after a year.

In the case that the Court of Appeals had ruled upon, the biological mother had agreed to allow her partner to adopt the couple's son, and share custody, although the woman had separated, the Courier-Journal reported.

Later on, the biological mother sought to have the adoption nullified. The case went back to Garber, who ruled that the biological mother had waited too long to attempt to see the adoption undone.

But the adoption should not have happened in the first place, the Court of Appeals said, because the state's laws do not provide for unmarried people to adopt the biological offspring of their partners.

The court insisted upon this, with Acree writing, "We wish to make this point perfectly clear."

The American Civil Liberties Union denounced the ruling, reported the Courier-Journal, with ACLU senior staff attorney Christine Sun quoted as saying, "This is worrisome because any public policy that denies the child of a same-sex couple of the right to have two parents does one thing and one thing only: it harms that child."

Sun is the senior staff attorney for the ACLU's Lesbian, Gay, Bisexual, and Transgender Task Force, the article said.

An attorney involved with the original case also commented. Said lawyer Trisha Zeller, who represented the woman who adopted her partner's child, said, "Every child is entitled to as much love and support as she or he can get, whether it comes from two parents of the same sex or the opposite sex."

A senior policy analyst with the anti-gay Kentucky Family Foundation, Martine Cothran, spoke favorably of the Court of Appeals' critique of what Cothran referred to as "rogue judges."

The article said that the ACLU indicated that in ten states, so-called "stepparent-like adoptions" are now legal, with the intention being that if a child loses his or her biological parent, that parent's partner could then assume legal guardianship of the child, ensuring an uninterrupted continuity of care for the child.

Moreover, adoption rights for unmarried partners, including same-sex partners, offer rights to children in terms of inheritance, wrongful death suits, and Social Security benefits, according to proponents of such laws, the article said.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.