On September 24, 2005, the Georgia Court of Appeals rendered a decision in Bolton v. Bolton, A25A1264 that helps clarify what has been a grey area of the law in Georgia, even after Obergefell v. Hodges, 576 U.S. 644 (2015): “whether a spouse in a same-sex marriage has parental rights over a child born in wedlock.”
While the answer may seem common sense to many, the law has been unclear and needed clarity from the Court of Appeals. In its holding, the Court held that “[u]nder Georgia law and the particular facts of this case, Tiffany is S. B.’s parent, entitled to be treated the same as any other parent when the trial court makes its child custody determination.” While the language in the decision seems quite clear, the Court states several times that its holding applies under the particular set of circumstances found in this particular case.
The case also was not the result of a constitutional challenge, which may be another way to attack same-sex couples and parentage.
So, do you still need a second-parent adoption in Georgia in a same-sex marriage? It depends. If your child was born in wedlock with the consent of your spouse, likely not. However, I’ve had clients recently go through with a second-parent adoption notwithstanding the Bolton decision, because in their opinion, nothing is safe even with a favorable Court decision. There is fear of the United States Supreme Court overturning Obergefell, which could leave the Bolton case vulnerable.
There could be other ways to attack parentage. When there are “what if” scenarios, adoption is a process that is final and leaves doubt behind. I have had some clients who already finalized a second-parent adoption with one child and just wanted to make sure the same was true for their second or third child, again, notwithstanding Bolton.
There are also instances where a child may have come into the marriage and step-parent adoption is the way to go. While the Bolton case seemingly clears a lot of things up with regard to Georgia law and the issue of same-sex couples parenting children, it is always wise to consult a Georgia attorney to discuss the particular circumstances of your family and what your best options are.
You can find the decision here: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://efast.gaappeals.us/download?filingId=4a6e5c0f-2ce1-4e42-87d2-7bf239b620ae&fbclid=IwY2xjawONtOFleHRuA2FlbQIxMQBzcnRjBmFwcF9pZBAyMjIwMzkxNzg4MjAwODkyAAEe8WGKp5rplTOfSuPQ6z-gTBYhKw61jfZ-DY-qhgBBgb9CYsoI5G4PcDI5U50_aem_IayvTLBkS2jnUBTJ1zQDHA