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Choice of Law, Jurisdiction, and Judgment Issues in Interstate Adoption Cases

I. Introduction

The purpose of this article is to describe the choice-of-law (or conflict-of-laws), jurisdiction, and judgments problems in "interstate" adoption cases.1 In the subject of conflict-of-laws, adoption is a sub-topic within the area of domestic relations. As explained below, domestic relations cases have always presented curious problems in multi-state situations-that is, in situations where people cross state and international lines and find that their domestic relationships are affected by the existence of different laws in the states from which they have come and into which they have migrated.2 Often multi-state domestic relations controversies are produced by parties moving from one state or country to another in order to accomplish legal results that they could not achieve in the places from which they have come and with which they perhaps have their most permanent relationships.3 Other cases arise in the normal course of life, during which members of a mobile population migrate from state to state in the normal course of events and are (perhaps) surprised to find that the laws formerly regulating their relationship are not the same in the places to which they have moved.

In recent years, issues of same-sex marriage, domestic partnerships (both opposite-sex and single-sex), and other issues have begun to dominate public and scholarly debate in the domestic relations area.4 As a result, the subject of domestic relations is beginning to produce even more complicated choice-oflaw, jurisdiction, and judgments problems than in the past. Interestingly, however, at least under traditional criteria, adoption does not usually present the same kinds of complicated multi-state problems that exist in other areas.5The reason that adoption does not ordinarily produce difficult conflict-of-laws issues is a simple one: adoption is accomplished through court proceedings, which result in judgments granting adoption to the petitioning party or parties.6 The existence of a valid judgment eliminates the kinds of choice-oflaw problems that exist with other kinds of domestic relationships, such as marriage.7 Once a valid8 judgment is rendered in an action, the implementing statutes to the Full Faith and Credit Clause limit the ability of the parties to the action, and sometimes others, to challenge the judgment in another state.9

Thus, if a state allows the adoption of a child by two single parties, whether of the same-sex or of different sexes, and if the adopting state's courts possess proper jurisdiction to render an adoption decree under all applicable laws, the judgment of adoption granted to the parties cannot be effectively challenged in another state on the grounds, for example, that the judgment violates the "strong public policy" of the latter state.10 In short, the effect of a valid judgment of adoption is to eliminate the ability of other states to reject the adoption because they disagree with it, even though the adopting parties have moved from the forum that granted the adoption petition to a state that would not have allowed the adoption as an original matter.

Even though the interstate problems with adoption are not as complicated as those involved in other kinds of domestic relations cases, a number of interesting conceptual problems exist in multi-state adoption controversies. These issues are often ignored or misunderstood by the courts, either because they have not been recognized and presented by counsel or discerned by the court itself, or because the case can be decided without involving the court in the complicated inquiry that would be produced by confronting the issues. In the course of discussing the questions raised by multi-state adoption cases in this article, it will be useful to discuss these issues. For, as later discussion will show, at least some of the issues lurk in the background in decisions of contemporary interest, and understanding them can help clarify much confusion in the reported cases.

Section II of this article will describe the choice-of-law issues in adoption cases, including the potential constitutional restrictions on the ability of a state to apply its own law to an adoption case. Section III will then describe the issues of subject-matter and personal jurisdiction that can affect the validity of an adoption decree. Section IV will discuss the ability to attack judgments of adoption collaterally in other states, including the issues that arise under the applicable implementing statutes to the Full Faith and Credit Clause of the Constitution. Section V will then conclude with general remarks about potential federal intervention that might affect the otherwise stable scheme described in Sections II through IV.

II. Choice-of-Law Issues in Interstate Adoption

A. The Basic Rule: Adoption is Governed by the Law of...

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