Can a Second-Parent Adoption be Invalidated?
Answered by Leslie Cooper, staff attorney with the American Civil Liberties Union's Lesbian and Gay Rights Project. June 4, 2003
Q: Dear Leslie,
My ex-partner and I are in the middle of a custody battle. We are both joint managing conservators, and I have primary custody of our son. But her attorney has just filed a motion that our son be returned to her, arguing that the second-parent adoption decree awarded to me and the judge's temporary orders are invalid.
My ex-partner originally adopted our son from Kazakstan. Six months later, we adopted him together in San Antonio, Texas. Her attorney now claims that the adoption Kazakstan is the only valid adoption.
Do you know if there have been any other cases like this one?
Patty
A: Dear Patty,
Texas appellate courts have not ruled on whether an adoption of a same-sex partner’s biological or adoptive child is permitted under Texas adoption law. There are appellate cases addressing the availability of such adoptions (commonly known as second-parent adoptions) in a number of other states, but they don’t provide much guidance here. The courts are divided on this issue. Moreover, it is a question of state law, so what other state courts say would not be binding on a Texas court considering its own adoption law.
But regardless of whether Texas appellate courts ultimately interpret the state adoption law to permit second-parent adoptions, there may be limits under Texas law on your ex-partner’s right to challenge a final adoption to which she consented. For example, it is common for states to have laws that impose time limits within which the validity of an adoption may be challenged and that narrowly limit the circumstances under which adoptions can be undone (for example, where a biological mother never consented to her child’s adoption by another). Such laws are designed to promote finality of adoption to ensure family stability for adopted children. It is possible that Texas law contains such limits on adoption challenges and that they might apply in your case. In addition, Texas may have law that would prohibit your ex-partner from attacking your adoption because she consented to it.
If you don’t already have a family law attorney with experience in gay, lesbian, bisexual and transgender family law -- especially custody and adoption issues – you should get one as soon as possible to explore these and any other avenues that may be available to you.
Moreover, while I’m not aware of any reason that it should make a difference that the initial adoption took place in another country, this is something else your attorney would need to look into.