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Today is Wednesday, November 28, 2007


Court Sides with Out-Of-State Co-Parent

[NEBRASKA] - In a complicated case that turns on technicalities, the Nebraska Supreme Court has reversed a lower court ruling that invalidated-- for the purposes of Nebraska law -- a lesbian mother?s Pennsylvania adoption.

Joan Bridgens adopted a child in 1996, and her partner, Serenna Russell, co-adopted the same child in 1997. After the two broke up, however, Bridgens challenged Russell's parental status, arguing that unsettled Pennsylvania law should not be honored in Nebraska. Although the trial court agreed with Bridgens, the high court did not, sending the case back to trial court in a June 28 opinion.

Sexual orientation aside, the case presents the simple question of whether a court judgment issued in one state must be honored in another. With very few exceptions, the Full Faith and Credit Clause of the U.S. Constitution insists that the answer is yes. But if a court lacks "subject matter jurisdiction" over the issue it decides, then other states are not bound to its opinion.

Since the legal status of second parent adoptions in Pennsylvania is presently under review by that state's Supreme Court, Bridgens convinced the trial judge that the procedure was irregular, and the Pennsylvania court lacked the authority to grant her former partner's adoption petition.

Although the high court reversed that decision last Friday, they did so on a technicality -- ruling that the burden of proof should have rested on Bridgens, who brought little or no evidence to support her argument. On remand, the justices ordered the trial court to hear evidence on both sides, and to take into account the eventual high court ruling out of Pennsylvania.

But two of the seven justices reached the core issues in a concurrent opinion. Whether or not second parent adoptions survive the scrutiny of the Pennsylvania Supreme Court, they wrote, the court that issued the original decree had the jurisdiction to do so at the time. As such, the adoption is a settled matter of law, or res judicata, that cannot be challenged and that must be given full faith and credit.

Some of these ideas may well be revisited in the event that same-sex marriage is legalized in one of the 50 states, when the Full Faith and Credit Clause is expected to be raised as a challenge to one of the many states that outlaws recognition of a same-sex marriage from outside its borders.

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