A “Legitimate” Cause for Concern

By Essie Lazarus

As the decades have rolled on, the dynamics of families have changed significantly. What was once the “Leave It to Beaver” standard structure of the nuclear family is no longer. While the white picket fences may still exist, the families that liv e behind them are ever changing. A significant number of children are no longer being born as a result of marital relationships. Additionally, families are no longer being headed solely by heterosexual couples. A cause of these shifts can be attributed to changes in societal acceptance, which in some cases, such as marriage equality, have led to changes in the law. However, that is not true in all cases, particularly in the case of legitimation in Georgia.

The current laws in Georgia governing the establishment of parental rights regarding children outside of wedlock, known as legitimation, are antiquated to say the least. While legitimation was created as a vehicle for fathers to establish a legal relationship with their children when born outside the bonds of wedlock, its application has created inequities not only for putative fathers, but also for unmarried samesex couples. While there is an option for these same-sex couples to pursue a second-parent adoption, the laws in Georgia regarding second-parent adoptions are not clear; and, in fact, there are many counties in the state that will not grant them.

A second-parent adoption is defined as “a legal procedure that allows a same-sex parent, regardless of whether they have a legally recognized relationship to the other parent, to adopt her or his partner’s biological or adoptive child.”1 Currently, fourteen (14) states and the District of Columbia have a state statute or appellate court decision allowing second-parent adoptions.2 Additionally, there are currently some counties in another fourteen (14) states, including Georgia, that have at some point granted second-parent adoptions to same-sex couples.3 However, these states do not have statutes or appellate decisions that provide definitive guidelines concerning the granting of these adoptions, which undoubtedly leads to confusion.4

A prime example of the confusion surrounding secondparent adoptions can be seen in the Court of Appeals of Georgia case, Bates v. Bates. In this 2012 case, the two parties, who were involved in a same-sex relationship with one another, decided to have a child together biologically.5

Given that this case went before the Court in 2012, three years pre-Obergefell, there was no option, at the time, for the couple to marry and establish parental rights through marriage.

After the child was born, the parties filed a secondparent adoption action for the non-biological parent to adopt the child, which was granted by the Fulton County Superior Court.6 Unfortunately, the couple’s relationship later dissolved resulting in the biological parent returning to the Court to set aside the adoption.7 The Court dismissed the biological parent’s motion to set aside on the basis of untimeliness.8 Contemporaneous to the aforementioned litigation, a custody dispute between the parties regarding the child was occurring in a neighboring county.9

When the biological parent failed to have the Fulton County Superior Court set aside the adoption, she made a motion in the court of the neighboring county to set aside the adoption in response to the non-biological parent’s custody petition.10 The Court granted the motion to set aside under the “reasoning that Georgia law does not recognize ‘secondparent adoptions.’”11

Although, on appeal, the Court of Appeals of Georgia reversed the judgment of the lower court, the Court failed to establish whether or not Georgia law permitted secondparent adoptions as it instead based its opinion on the application of res judicata.12 Given the Court of Appeals of Georgia’s failure to rule on the issue, there is currently no definitive answer as to whether Georgia will permit second-parent adoptions, which is not only problematic for the parties involved in these relationships, but more importantly the children that result from these unions.

As of now, children who are born into families in which their parents are of the same-sex and not married, have no legal right to inherit from the non-biological parent, receive healthcare benefits from the non-biological parent, continue living with the non-biological parent if the biological parent dies, becomes incapacitated , or if the relationship between the parents dissolves before the child reaches the age of majority.13 Under the above mentioned circumstances, children involved these family structures do not receive the equal protection that laws allowing for legitimation or  adoption provide.

While on the surface this might appear to be an inconsequential problem, given the decline in the marriage rate and the number of children conceived outside of marriage there is no question that there are a number of same-sex couples who want to raise children together, but for a number of reasons may not believe that marriage is a feasible option for them. While the methods of conception differ between heterosexual and homosexual couples, the laws that not only give parents legal rights to their children, but more importantly give children access to the benefits of having a second parent should be equal.

The Georgia legislature needs to address this issue either by making the language regarding legitimation gender-neutral or introducing legislation that provides a clear pathway for unmarried, non-biological parents involved in same-sex relationships to establish legal rights to their children. The legislature’s failure to do so could lead to the raising of constitutional questions as well as further litigation seeking guidance on this issue at the expense of children who are being denied the benefits that come with having a second legal parent.

Essie is a proud, native Atlantan and a recent graduate of Emory Law School. Throughout her law school career, she has been dedicated to learning about the practice of family law. She will be sitting for the February 2019 Georgia Bar Exam and plans on practicing family law in the Metro-Atlanta area thereafter. She can be reached at esther.lazarus@emory.edu.

End Notes

1 National Center for Lesbian Rights, Adoption by LGBT Parents (2018).www.nclrights.org.

2 Id.

3 Id.

4 Id.

5 Bates v. Bates, 730 S.E.2d 339, 340 (Ga. App. 2012).

6 Id.

7 Id.

8 Id.

9 Id. at 341.

10 Id.

11 Id.

12 Id. at 344.

13 Catherine E. Smith, Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of Exclusion -Legitimacy, Dual-Gender Parenting, and Biology, 28 Law & Inequality: A Journal of Theory and Practice, 308-309.