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9/1/2010 - September 2010 SLI Educational Update - A. K. v. N. B - A Lesbian's Rights to Custody and Visitation With Her Partner's Child




 To:                  SLI Supporters                                  

Date:                September 2010  

From:              A. Eric Johnston

Re:                  A.K. v. N.B. – A Lesbian’s Rights to Custody and Visitation With Her Partner’s Child


In 2006 we were asked to assist in the appeal of a case that involved a lesbian domestic partner’s rights to have custody and visitation with the natural child of her partner.  The issue arose in California, but ended up in Alabama.  We have just received an encouraging opinion, but it is not the end of the case.

N.B. is the natural mother of her child.  While a resident of California, she entered into a same-sex relationship with another woman, A.K.  They ended their relationship and N.B. came to Alabama with her minor child, where she subsequently married a man.  A California action instituted by A.K. to obtain visitation and custody rights resulted in the court interpreting the California’s Domestic-Partnership Statute to allow domestic partners a parent-child relationship with the child of either of them.  The court interpreted an earlier California case, Elisa B. v. Superior Court, to say there was “no reason why both parents of the child cannot be women.” 

Having moved back to Alabama, N.B. filed a petition with the Houston County Juvenile Court which resulted in an order awarding her sole custody.  A.K. was not a party to that case.  In October 2006, the California court ruled that A.K. was also “the child’s mother.”  The Houston County Court concluded no Alabama or federal law would give a non-parent in a same-sex relationship the standing to obtain custody or visitation of the child of a former partner.  In April 2007, A.K. came to Alabama and filed a petition to set aside the order giving sole custody to N.B.  It did not, so A.K. appealed the decision.  It was reversed by the Alabama Court of Civil Appeals on technical reasons and interstate custody laws.  N.B.  appealed to the Alabama Supreme Court.

The Alabama Supreme Court ruled that A.K., the California resident and non-parent, was entitled to be involved in the juvenile court proceeding from the beginning.  In other words, neither the Houston County Juvenile Court, the Alabama Court of Civil Appeals, nor the Alabama Supreme Court would have jurisdiction to decide the merits of the case.  The Alabama Supreme Court vacated all of the judgments.  The case is now returned to the Houston County Juvenile Court for further proceedings.

It is encouraging, however, that while the Alabama Supreme Court was not able to rule on the merits, i.e., the substantive issues in the case, it stated the following:

“In this case, the California trial court entered a judgment holding that A.K. was a second mother of the child based upon the holding in Elisa B. that Cal. Fam. Code § 7611 (d) could be applicable to a female and the statement in that case that the court ‘perceived no reason why both parents of a child cannot be women.’  The mother argues that substantial issues exist as to whether the California trial court ‘exercis[ed] jurisdiction consistently with the provisions of the PKPA [interstate custody laws].’  Issues also are raised that implicate the federal Defense of Marriage Act, 28 U.S.C. § 1738C.

We also note that Art. I, § 36.03, Ala. Const. 1901, provides, in part, that ‘[m]arriage is inherently a unique relationship between a man and a woman’ and that ‘[a] union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state ….’  Section 30-1-19, Ala. Code 1975, also seeks to protect marriage as ‘inherently a unique relationship between a man and a woman.’  Accordingly, questions regarding the judgment of the California trial court and its enforceability in Alabama may exist in light of the unequivocal nature of Alabama public policy on the issue presented by this case.”

We are working with our friends at Liberty Council on this case.  Liberty Council has been involved in many of these cases around the country.  None of us were involved at the trial level, but came to N.B.’s aid on appeal.  We are now assisting on the re-filing of the case in Houston County.  Simultaneously, A.K. has filed another proceeding in California, where we will be depending on California attorneys working with Liberty Council.  We fully expect a favorable outcome.  If you read closely the second quoted paragraph above, you will see the strong public policy that homosexuality and its many dimensions are not favored in Alabama law. 

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