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

• Author: Ralph U. Whitten
• Position: Professor of Law, Creighton University
• Pages: 803-851

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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 publicPage 804 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

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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 the Forum

The basic conflict-of-law rule in the area of adoption is simple to state: "The substantive law applied in adoption cases has always been the law of thePage 806 forum, as in divorce cases."¹¹ Thus, section 289 of the Restatement (Second) of Conflict of Laws states simply: "A court applies its own local law in determining whether to grant an adoption."¹² The affect of this "lex fori"Page 807 approach in adoption cases is to eliminate choice-of-law questions concerning the permissibility or validity of a particular adoption and elevate issues concerning the jurisdiction of the forum's courts to great importance. One must, however, distinguish questions concerning the permissibility or validity of adoption as an original matter from the so-called "incidents" of the adoption. These incidents are generally controlled by the law of the state in which they are exercised, even though the adoption has taken place in another state.¹³ Thus, the right of a parent to discipline a child in a particular manner, or to receive the child's wages, are governed by the law of the state in which the parent and child are living when the issue arises, even though the adoption has taken place in another state.¹⁴ Similarly, the inheritance rights of an adopted child will normally be determined by the law governing the deceased person's property, typically the law of the situs in cases of inheritance rights to real property and the law of the decedent's domicile in the case of personalty, even though the child was adopted in another state.¹⁵

These rules are simple and straightforward. However, before concluding that no conflict-of-laws problems exist with regard to the original permissibility or validity of adoption, it is important to consider whether the modern developments on the constitutional limits restricting the ability of the states to apply their substantive law to multi-state cases have any bearing on the right of a state to apply its own law in adoption cases.

B The Modern Constitutional Limits on State Choice of Law

The Supreme Court has imposed limits on state choice-of-law primarily under two constitutional clauses, the Full Faith and Credit Clause¹⁶ and the Due Process Clause of the Fourteenth Amendment.¹⁷ In Allstate Insurance Co. v. Hague,¹⁸a majority of the United States Supreme Court agreed, in the abstract, that the test for determining whether a state could constitutionally apply its law to a case was the same under both the Full Faith and Credit and Due Process Clauses: the state must have a sufficient contact or aggregation of contacts creating state interests that would make the application of its law neither arbitrary nor fundamentally unfair.¹⁹ Subsequently, however, in Sun Page 808 Oil v. Wortman,²⁰ the Court indicated that the Allstate test only applied to "nontraditional" choice-of-law decisions.²¹ The test does not apply to traditional choice-of-law rules, defined as rules that were accepted at the time the Full Faith and Credit and Due Process Clauses were ratified and whose acceptance has continued into the present. Such traditional rules are validated by their historical pedigree without the need to refer to the Allstate contacts test.²²

It is clear that Allstate and Sun Oil place only modest restrictions on a state's ability to apply its law to a case.²³ It is unlikely that either of the cases would impose any obstacle to the application by a state of its own adoption law. If the lex fori rule is considered a "traditional rule" accepted at the time the Full Faith and Credit and Due Process Clauses were ratified, it is clear that the rule's acceptance has continued into the present and would be validated under the Sun Oil test.²⁴ Even if the historical pedigree of the lex fori rule does not validate it, however, the application of forum law to adoption cases will be valid under the Allstate test in virtually all conceivable circumstances in which adoption adjudications occur. For under the standards employed to determine when a court has jurisdiction to grant an adoption, the forum will always have sufficient contacts with the parties to create state interests thatPage 809 will make application of its adoption law neither arbitrary or fundamentally unfair. Thus, the Restatement (Second) of Conflict of Laws states:

ß 78. Jurisdiction to Grant an Adoption A state has power to exercise judicial jurisdiction to grant an adoption if (a) it is the state of domicile of either the adopted child or the adoptive parent, and...