NY Court Vacates New Yorker's Adoption of Cambodian Boy

From the AP:

A four-year adoption fight between jet-setting Manhattanites over an ailing and abandoned orphan from Cambodia is ending, at least for now, with the boy able to see the only father he's known.

New York's top court on Tuesday overturned the adoption by Johnson & Johnson heiress Elizabeth "Libet" Johnson, closing a case that wended through international law and involved what the adoptive father's lawyer called a "stealth adoption" by Johnson.

One of Manhattan's richest women, Johnson has been fighting over the adoption of the 7-year-old with her former lover, Dr. Lionel Bissoon, the one-time weight-loss
guru to the rich of Manhattan, West Palm Beach and Beverly Hills.

"It means they will be able to have the father-and-son relationship they had since
he was just a few months old and not have it cut off," said Bissoon's attorney, Bonnie E. Rabin. "The irony is that this child was orphaned and they tried to take away the only father he ever had ... this child loves his father."

The child continues to live with Johnson in her multimillion dollar Manhattan apartment, although the decision gives Bissoon legal standing he sought to see the child he helped rescue.

OK, ignore all the "rescue" references for now, I want to talk about the legal aspects. If you want to read the full opinion, click here.

The facts of the case are pretty confusing, as the prospective adoptive parents tried several different avenues to adopt the child who was originally brought to the U.S. on a humanitarian visa to get heart surgery. They thought the U.S. moratorium on adoptions from Cambodia would prevent them from adopting the boy, so the dad reestabalished his citizenship in Trinidad-Tobago, and sought to adopt the boy there, with the intention of having the mom so a second-parent adoption in New York after the adoption in Trinidad. Cambodia granted permission for the dad to adopt in Trinidad, after mom told them that she would no longer be pursuing an adoption of the Cambodian boy in New York. Unfortunately, the couple had not fsctored Trinidad-Tobago law into the mix -- that country would not allow adoption by a single man.

When mom learned later that she might be able to adopt the child under New York law, dad agreed to help out, even though the romantic relationship between them had ended. He wrote the Cambodian government saying he was not going to adopt the child after all, and requested that the mom be allowed to adopt him. Cambodia gave mom the same letter it gave dad, granting mom permission to adopt. Dad still thought that he would be parenting the boy after the mom adopted him, because he and Mom still had cordial relations after their breakup. That didn't last, though, and the mom eventually petitioned the New York court to adopt the boy without providing any notice to the dad. That adoption was uncontested, and granted.

The legal issues are three-fold: 1) Is the dad a legal father who should have been given notice of the mom's adoption petition, and who had to consent before the mom could adopt the child; 2)does the doctrine of international comity or the act of state doctrine require New York courts to recognize the Cambodian adoption; and 3) what is in the best interest of the child?

The court concluded that the letter granting permission to dad to adopt the child was actually a valid Cambodian adoption, thereby making the dad an actual legal father. The only way that the child could be adopted by the mom, then, was with the consent of the father or because of a valid termination of the father's parental rights. The court concluded that the father's rights were not terminated in accordance with New York law, nor was consent validly given in accordance with New York law, just because the father wrote to the Cambodian government to disavow his intention to adopt the child.

This merges with the issue of international comity, the doctrine that requires a U.S. court to recognize foreign decrees of adoption, unless some exception applies. This is on its face a bit contradictory -- the court recognizes the Cambodian adoption, but won't recognize Cambodia's conclusion that the dad disavowed the adoption. The court explains the difference this way:

But once parental rights have been validly established under New York law, between an adoptive parent and child who continue to live in New York, the choice of law governing the parental relationship is much less difficult: New York law applies.

Under established conflict of laws principles, the applicable law should be that of "the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation." (citation omitted). New York's interest in a parent-child relationship between two of its residents is plainly greater than the interest of Cambodia in a relationship between an adult who never lived in Cambodia and a child who, with the approval of the Cambodian government, has been adopted by a non-Cambodian and taken to live elsewhere. 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 upon the vagaries of a foreign country's law. The rule [mom] seeks would create unacceptable uncertainty for every New York parent raising a child he or she has adopted in a foreign country.

So, New York will recognize a foreign decree of adoption, but after deciding that a parent-child relationship has been validly created by that foreign decree, the choice of law to be applied is not Cambodian law, but the law of New York.

The court disposes of the "act of state" doctrine, which says that a U.S. court will not question the acts of a foreign government when done within that foreign government's territory, by simply saying that even if it was an act of state, to terminate the dad's parental rights and issue an adoption decree for the mom, those were not acts that occurred within the territory of Cambodia. Neither of the parents were Cambodian citizens, all three parties -- father, mother, child -- were in New York at the time of these acts, so the act of state doctrine did not apply.

The court's decision to apply New York law is likely to favor adoptive parents, and further disempower sending countries who might want the return of a child, or some say in the custody of one of their child citizens.

Finally, the mom claimed that the lower court erred in failing to consider the best interest of the child before vacating the adoption decree. The court responded:

The best interests of a child, important though they are, do not automatically validate an otherwise illegal adoption. In particular, the parental rights of a child's father cannot simply be ignored because a court thinks it would be in the child's best interests to be adopted by someone else. The courts below were clearly correct in declining to hold the best interests of the child to be dispositive in this case.

This is not, however, the way a lot of courts rule. In many jurisdictions, even when there is an illegal adoption, the court will require a hearing on the best interest of the child. The argument for not returning children to birth parents is usually along the lines of "how can we remove this child from the only parents she's ever known to turn her over to a stranger?" And often a court will answer that question, "We can't." That's one of the reasons adoptive parents will delay and dodge and fight in a contested adoption -- they (and their attorney) know that the longer the child is with them, the more likely the court will say it's in the child's best interest to stay with them.

The court gives a nod to that best interests argument, saying, "For all the legal complexities in this case, no one dealing with it can forget that its subject is a child, now seven years old, and that that child has lived for virtually his whole life with [the mom], who he no doubt thinks is his mother." Their comfort level in disavowing the need for a best interest of the child hearing was probably aided by assurances given by the father:

[The dad] assured the courts below, and has assured us, that his own first concern is[the child's] best interests, and that he has no intention of removing the child from the only home he has ever known. Indeed, [the dad's] brief in this Court says that if [the mom] accepts his status as father, he is still willing to agree to a second-parent adoption by [the mom]. [The dad] does maintain that, as [the child's] father and only legal parent, he is legally free to prevent the boy's adoption by [the mom], and to remove him from [the mom's] home, if he wants to. But since he says he does not want to, neither we nor the courts below have had any occasion to decide whether [the dad's] rights are as extensive as he claims. That question is academic, and we hope it will remain so.

All in all an interesting international adoption case.