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Utah A.G. asks appeals court to stay judge-approved same-sex adoptions

Published: Tuesday, Sept. 1 2015 4:19 a.m. MDT

The Utah Attorney General's Office is petitioning the Utah Court of Appeals to halt same-sex adoption proceedings as it appeals a federal judge's ruling that overturned the state's constitutional definition of marriage. (sirastock, Getty Images/iStockphoto) The Utah Attorney General's Office is petitioning the Utah Court of Appeals to halt same-sex adoption proceedings as it appeals a federal judge's ruling that overturned the state's constitutional definition of marriage. (sirastock, Getty Images/iStockphoto)

SALT LAKE CITY — The Utah Attorney General's Office is petitioning the Utah Court of Appeals to halt same-sex adoption proceedings as it appeals a federal judge's ruling that overturned the state's constitutional definition of marriage.

The petitions were filed on behalf of the Utah Health Department this week in response to two 3rd District Court judges — Elizabeth Hruby-Mills and Andrew Stone — who approved adoptions from same-sex couples who were married in Utah during the brief window when it was legal. The two judges also issued orders that would require the department to provide updated birth certificates for the children.

In each couple's case, one partner has legal custody of the child and the adoption seeks to extend parental rights to the second partner. Doing so, the attorney general's office argues, would essentially recognize same-sex marriage, which has not been permissible under Utah law ever since the U.S. Supreme Court issued a stay of Judge Robert Shelby's decision to overturn Utah's voter-approved Amendment 3 defining marriage as between a man and a woman.

"The attorney general has recommended that the proceedings be stayed until the federal courts determine the constitutionality of Utah laws requiring the state to recognize only opposite-sex marriage," the attorney general's office said in a prepared statement Wednesday. "Without guidance from Utah's appellate courts, compliance with the court order before the federal courts rule is likely to create more uncertainty in Utah law and for Utah families."

Supporters of same-sex marriage responded with outrage.

"Mr. Reyes is just being mean," said Utah Democratic Party Executive Director Matt Lyon, referring to Utah Attorney General Sean Reyes. "His actions do nothing but rip families apart to score cruel political points with his Republican delegates."

Brandie Balken, executive director of Equality Utah, said the move requesting the health department not be required to comply with the judges' orders is "unheard of."

"Enabling all children to become a part of permanent, lifelong families should be a defining goal of our state," Balken said.

The attorney general's office responded to the criticism, explaining it is not "suing" the judges, and said the couples are not required to file legal responses to the requests.

Kimberly and Amber Leary, who have been together six years, were married in December and petitioned for an adoption four days later, prior to the stay being issued. They had spent three years planning for their daughter, who was born to Amber Leary and is now 17 months old.

The Learys received a court order for an amended birth certificate from Stone, which David Patton, executive director of the Utah Department of Health, rejected Wednesday.

"What Dr. Patton had said is, 'It sounds like your case is like all the other cases, and I'll be appealing that tomorrow,'" Kimberly Leary said.

Patton insists the health department is not defying the judge's orders.

"We believe the authority of the judge," Patton said. "We recognize that, are respectful of that, but we also understand that order can be appealed and we're in the process of doing that right now."

Patton said he is aware of five same-sex couples who have acquired judges' orders for their adoptions, but he has only seen two, including the Learys' order.

Assistant attorney general Joni Jones said her office will likely file a petition to the Learys' court order as well.

As they left the health department Wednesday, Kimberly Leary said she felt like her family has been made into "second-class citizens."

"I feel like my daughter is not as important as every other heterosexual couple's daughters," she said. "We put a lot of work into creating our family, starting with the day we started dating. We started dating based on the fact that we had the same family values and ideas about raising our child."

Email: mromero@deseretnews.com, Twitter: McKenzieRomero

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