This unusual international adoption case, which was recently decided by New York's highest court, has far-reaching implications for current and future best-practices as well as important policy implications. In L.M.B. v. E.R.J., 2010 NY Slip Op 1345; 14 N.Y.3d 100 (February 16, 2010), the New York Court of Appeals was called upon to untangle a New York adoption by ERJ (mother) and a Cambodian adoption by LMB (father). Each adoptive parent, who were never married to one another, claimed to be the child's only legal parent.
The child, Doe, was found abandoned in Cambodia and brought to New York by ERJ for medical treatment. Subsequently ERJ and her boyfriend, LMB, decided that they would both adopt Doe. Both ERJ and LMB erroneously believed that Cambodian children could not be adopted in the United States. It was decided that LMB (who because he had been born in Trinidad and could reclaim Trinidadian citizenship) would adopt Doe in Trinidad and Tobago. Once that adoption was finalized, ERJ would adopt Doe in New York.
As part of this plan, Cambodia issued a “document” to LMB in June 2004 which, according to the translation submitted by LMB, was entitled “ADOPTION CERTIFICATE” and stated that LMB “is allowed to adopt” Doe. The Trinidadian adoption plan never materialized. ERJ then decided she could adopt Doe in New York. LMB asked Cambodia to “relinquish” the permission he was given to adopt Doe and ERJ obtained a “certificate” like the one which was originally given to LMB.
In January 2006, ERJ filed a petition to adopt Doe in New York but did not give LMB notice of the adoption.This adoption was granted in June 2006. In August 2006, LMB discovered this adoption and moved to vacate. In the meantime the Cambodian government issued documents affirming ERJ's right to adopt and nullifying LMB's.
The lower court declared the New York adoption invalid because the 2004 Cambodian action was actually an adoption of Doe by LMB, not just permission to adopt. Based on the facts and expert testimony, the court agreed with LMB that he was Doe's father and that his parental rights had never been relinquished or extinguished. Therefore, ERJ could not adopt Doe in New York without notice to and consent from LMB.
On appeal, ERJ argued that New York should not give comity to the Cambodian adoption and claimed that LMB was not Doe's father under New York law. The Court of Appeals explained that foreign adoptions are generally recognized unless there are truly compelling reasons not to, like cases in which “enforcement . . . is shocking to the prevailing moral sense.” Because there were no compelling reasons not to recognize his Cambodian adoption of Doe, LMB's adoption would be recognized by New York.
Interestingly, the Court of Appeals raised an argument ERJ failed to make. In 2004, Doe and LMB were living in New York, not Cambodia, and Doe had very little, if any, prospect of ever returning to Cambodia. Thus, in 2004 New York had as much legal interest in who should adopt Doe as Cambodia. ERJ's fatal error was ignoring the premise that Cambodia's position on the status of it own citizen was at least entitled to some recognition in New York.
Once the Cambodian adoption was given effect however, LMB's subsequent surrender of his parental rights was governed by New York, not Cambodian law. Since LBM's surrender of his parental rights was improper under New York law, it was declared void. The Court held that “when New York parents have acquired, by virtue of a foreign country adoption, parental rights that are recognized in New York, those rights can no longer depend on the vagaries of a foreign country's law”.
[The court gave no weight to ERJ's “act of state” argument and rejected her “best interest of the child” argument by pointing out that the child's best interest do not “automatically” validate an “otherwise illegal adoption” and the father's rights cannot be ignored because a court thinks the child should be adopted by someone else.]
This opinion bears close reading reading because the issues are sure to appear again in different factual and legal situations. The most important principle to remember is that once a foreign adoption is finalized, the law of the state where the child resides controls all future legal decision-making about that child. Adoptive parents will not be allowed to return to the country where the adoption was originally finalized to make any changes concerning the child's custody, guardianship or legal parents. What the Court did not decide is what would happen if the original foreign decree was illegal, invalid or procured by fraud or corruption. That issue will have to wait for another day which will surely come soon.
Guest analysis by Harvey Schweitzer, Esq.
Mr. Schweitzer is a lawyer whose practice in Washington D.C. and Maryland focuses on legal matters pertaining to children and the provision of services to children including foster care, child abuse and neglect, adoption,custody and mandatory reporting. He is the co-author of Foster Care Law: A Primer. Contact him at harvey@schweitzerlaw.net or go to www.schweitzerlaw.net
What did the court mean when it hinted that in 2004 NY had as much legal interest in the adoption as Cambodia? Could a NY court enter a valid adoption order in lieu of Cambodia?
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Doe did not (and could not) enter the USA for purposes of adoption but for medical care. This meant that he had to return to Cambodia. But he did not return to Cambodia and “overstayed” his medical visa. ERJ (and LMB) of course did not want him to return to Cambodia and wanted to adopt him.
But, they did not think they could file to adopt in NY b/c in December 2001 Cambodia stopped issuing “adoption visas” for Cambodian orphans.
However, it has been and I think still is the practice that if a child is in the USA a petition to adopt can be filed and the court has jurisdiction over the adoption even if the child is in the USA “illegally.” Whether the court will hear and grant the adoption, or whether the child's home country (i.e. Cambodia) will challenge jurisdiction is a separate issue.
In this case ERJ never tried this. Why? We do not know exactly.
How would an adoption lawyer interpret this: File in New York and see what happens.
Two
In 2004 ERJ was told she could adopt Doe in NY. Should New York, when ERJ filed her adoption by herself, give comity to LMB's Cambodian adoption of Doe? This was an issue in the case.
The Court hinted that the answer could be no because by June 2004, “it was not self-evident that New York should defer to Cambodia to decide the question of whether John Doe should be adopted, or by whom; arguably, as of June 2004, New York's interest in that subject was not less than Cambodia's . . . .”
How would an adoption lawyer interpret this: Even if there has been a foreign adoption you may as well go ahead and challenge it if the you can show that a jurisdiction other than the adoption-granting jurisdiction has an interest in the adoptee “not less than” the adoption-granting jurisdiction.
In other words, LMB did what he should have, in fact the only thing he could have which is to argue that Cambodia had jurisdiction. Whether or not Cambodia had ANY power to stop or influence the adoption if LMB had not taken any action in Cambodia is an open question.
Observation
What?! This can't possibly be true. This places all foreign adoptions in question. There has got to be more here. And I think there is. The court did not like the way LMB adopted. It was a set up. No one ever went physically “back to” Cambodia to get Doe adopted.
So, now go back to One above. Is the court really saying “If the child is in the USA (NY) then NY has at least as much interest in the child to seize jurisdiction over his/her adoption even if another country claims (or could or has claimed) jurisdiction as well?
And even if New York did have and assert jurisdiction, the New York adoption is pretty much worthless if the child can be deported for not following immigration procedures. This really illustrates the tension between the state court's inherent power to decide adoption issues and the federal control over international adoption.
In other words, LMB did what he should have, in fact the only thing he could have which is to argue that Cambodia had jurisdiction. Whether or not Cambodia had ANY power to stop or influence the adoption if LMB had not taken any action in Cambodia is an open question.
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