ACLU Praises Appeals Court Decision on Same-Sex Second-Parent Adoption

Affiliate: ACLU of Michigan
December 13, 2012 1:21 pm

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LANSING, Mich. – The Michigan Appeals Court ruled this week that family court judges have jurisdiction to grant second-parent adoptions to same-sex couples and that the birth mother cannot void an adoption just because she broke up with her former partner. The American Civil Liberties Union of Michigan successfully represented the former partner.

“This is a tremendous victory for Michigan families,” said Jay Kaplan, ACLU of Michigan LGBT Project staff attorney. “Every child deserves security and support and no child should be at risk of being ripped away from a loving parent because of a breakup.”

Julianna Usitalo and Melissa Landon were in a long-term committed relationship when, in 2003, they decided to have a child together through artificial insemination and agreed that Landon would carry the child. In 2005, in order to give their child the stability of two legal parents, Landon first terminated her parental rights and then she and Usitalo jointly petitioned the family court to be legal parents. The family court granted the parties request, ruling that second-parent adoptions by same-sex couples are permitted under Michigan’s adoption code.

In 2008, Usitalo and Landon separated, but entered into a custody and visitation agreement so both parents could continue to raise and share legal responsibility for the child. However, in 2010, Landon decided that she no longer wanted Usitalo in their daughter’s life and asked a judge to void the second-parent adoption that she had previously asked the judge to grant, arguing that the judge never had the ability to grant the adoption in the first place.

In 2011, a Shiawassee County judge rejected Landon’s argument and this week a three-judge appeals court panel unanimously affirmed the trial court’s decision.

According to the decision, “…We conclude that defendant may not collaterally attack the validity of the 2005 adoption because there was no defect in the court’s subject-matter jurisdiction. Thus, because the validity of the adoption may not now be questioned, we reject defendant’s claim that plaintiff lacked standing to seek custody and parenting time of the minor child, and affirm the trial court’s custody and parenting time order.”

In a concurring opinion, Judge Douglas Shapiro further pointed out that if the court were to void the joint adoption as Landon asked, the child might be left without any legal because Landon had terminated her own rights before asking for the joint adoption: “Were we to void the 2003 joint adoption, it is quite possible that this nine-year-old child would be without a legal parent. Defendant’s willingness to risk this result is quite troubling, as is her unabashed repudiation of the jurisdiction that she herself invoked seven years ago.”

In 2009, the ACLU of Michigan, along with Lambda Legal, successfully litigated a similar case before the Michigan Appeals Court in which the court concluded that Michigan family courts cannot refuse to hear child custody cases simply because they involve children whose parents are gay or lesbian.

In addition to Kaplan, Usitalo is represented Cooperating Attorney Sarah Zearfoss, who argued the case, and ACLU of Michigan Legal Director Michael J. Steinberg.

Read the judge’s decision in this case

Read the ACLU of Michigan’s legal brief

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