Special Issue in Same Sex Adoptions
Mary and Sue had been living together for several years when they decided that they wanted to adopt a child together. The first problem they faced was that the State they lived in would not allow two people of the same sex adopt a child. So Mary, who had the better job and credentials, adopted the child. She would never interfere with Sue’s right to see the child.
Everything went well. Sue was a wonderful Mother to the child and was the most important person in the child’s life. She took care of the child during the day and was the care giver for the child. Sue thought her life was perfect until Mary decided that Sue was no longer the love of her life. Mary planned to leave the relationship and take the child with her. She was, after all, the person who adopted the child. Sue had no legal rights. In order to get along, Mary and Sue signed an agreement giving Sue the right to visit the child. Sue was to pay child support. Each party had a lawyer when they entered into the agreement. Everything went well and the contract was followed until Mary and her new partner decided to terminate Sue’s right to visitation with the child. As you would imagine, Sue was crushed.
What to do? In the state where Sue lived the trend has been to rule that same sex issues were against public policy and unenforceable. What could Sue do to enforce her rights?
You would be surprised how often the scenario that is described above actually occurs in this country. When your client hits your door with this problem, how do you deal with this complicated set of facts? Do you file a petition in family court to enforce visitation or do you go into civil court to enforce the contract? Can you file both ways so as to avoid finding out later that you made the wrong choice?
Certainly you need to file the case under as many theories as possible. But think about filing as one of your causes of action an assertion that raises the rights of the child. If visitation and child support are for the benefit of the child then how about claiming that the contract between Mary and Sue is a third party beneficiary contract for the benefit of the child. What you end up doing is taking the issue of the same sex relationship out of the argument and focus on the rights of the child.
The lawsuit that you file may well fail at the trial level. You will be making new law and most trial judges believe that is the role of the appellate courts. It is very easy for the trial judge to dismiss the action as being a violation of public policy.
Recently the Court of Civil Appeals from the State of Oklahoma dealt with this very scenario. In an unpublished opinion the Court, when faced with a similar fact pattern, ruled that the interest of the child was paramount. The Court of Appeals, after reviewing the facts of the case, found that the contract was a third party beneficiary contract for the benefit of the minor child. The appellate court then sent the case back to the trial court to make a determination what was in the best interest of the minor child. We have provided a copy of the opinion for a complete review of the Court’s decision.
Brian T. Hermanson is a solo practitioner from Ponca City, Oklahoma. Brian’s practice is a general practice including criminal, family, personal injury, civil rights and probate practice. Brian was named the General Practice, Solo and Small Firm Division’s Solo of the Year in 2005. He can be contacted at firstname.lastname@example.org .