Georgia Appeals Court Overturns Contempt Conviction of Lesbian Mother

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ATLANTA – A long nightmare has ended for Elizabeth Hadaway, who was convicted of criminal contempt of court last year for not handing her daughter over to foster care after she lost custody solely because she’s a lesbian. A year and one day after a county court judge sentenced Hadaway to 10 days in jail, the Georgia Court of Appeals today overturned her contempt conviction. The American Civil Liberties Union, which represented her in the appeal and secured the little girl’s return home from foster care last May, applauded the court’s decision.

“Just yesterday I was watching Emma hunt for Easter eggs and thinking how the possibility of going to jail and being separated from her again made it hard to just enjoy the moment,” said Elizabeth Hadaway, a 29-year-old paramedic who first took in the little girl when the child’s biological mother asked her to raise and adopt Emma. “I’m just so grateful that the court has lifted this burden so we can move on and I can keep focused on making sure Emma has a happy home and a good life.”

Hadaway’s struggle began in 2006, when a Wilkinson County Superior Court judge was on the verge of granting her request to permanently adopt Emma when he noticed in a home study that Hadaway was living with her female partner of seven years. The judge abruptly changed his mind about the adoption request solely because Hadaway is a lesbian. Although Emma’s biological mother told the court that she wanted the child to be raised and adopted by Hadaway, the judge denied the adoption and ordered that Emma be sent back to her biological mother. Hadaway met with the biological mother at a truck stop to hand over the girl. After accepting custody, thus satisfying the court order, the biological mother saw how distraught Emma was at being taken from Hadaway and again insisted that Hadaway should raise the girl. Because Hadaway took Emma back, the Wilkinson County judge then ordered that Emma be sent to live in a foster home and sentenced Hadaway and her attorney to 10 days in jail for contempt of court. The sentence was stayed pending appeal.

Emma, now seven years old, was eventually returned to Hadaway’s care last May after an expert commissioned by Wilkinson County Department of Children and Family Services found that the little girl was experiencing emotional trauma because of the separation from Hadaway. Next, a judge in another Georgia county granted Hadaway permanent custody. DCFS then let Emma return home, but not before she had been in foster care for three months, during which her welfare was seriously compromised.

“We’re pleased that the court has agreed with us that Elizabeth Hadaway shouldn’t do jail time simply for doing the right thing for her child, but it’s unfortunate that it’s taken almost two years of court proceedings to end up with things where Elizabeth, Emma, and Emma’s biological mom wanted them to be in the first place,” said Debbie Seagraves, Executive Director of the ACLU of Georgia. “Elizabeth Hadaway did everything the judge ordered her to do, and she should never have been punished.”

“None of this would have ever happened if the trial court had recognized this child’s needs and not been swayed by misguided beliefs about gay people,” said Ken Choe, a senior staff attorney with the ACLU’s national Lesbian Gay Bisexual Transgender Project. “No child should fear being torn away from home just because his or her parents happen to be gay.”

Hadaway is represented by Ken Choe and James Esseks of the ACLU’s national LGBT Project, and cooperating counsel Dan Bloom of Pachman Richardson, LLC in Atlanta and Amy Waggoner of Aussenberg Waggoner, LLP in Alpharetta.

More information on the case, In re Hadaway, can be found online at www.aclu.org/lgbt/parenting/29566res20070502.html.