A procedural question is holding up a closely watched Mobile County adoption case after the probate judge originally assigned to it stepped aside, leaving both sides arguing over who has the authority to name his replacement.
U.S. District Judge Callie V.S. “Ginny” Granade heard arguments during a status conference on the underlying federal lawsuit but did not indicate how she would rule on the replacement question. “I don’t have a dog in that fight,” Granade told the courtroom, adding that she was simply curious about the mechanics of how the case would proceed next. She gave attorneys until the end of the month to file written arguments on why the federal case shouldn’t be dismissed now that the probate judge has recused himself.
The dispute traces back to a petition filed by Cari Searcy, who is seeking to formally adopt the son she and her spouse have raised together since his birth nine years ago. That petition was central to Granade’s ruling earlier this year striking down Alabama’s ban on same-sex marriage, after the judge determined the state’s marriage law could not be used to block gay couples from pursuing step-parent adoptions.
Searcy filed a new lawsuit against Mobile County Probate Judge Don Davis after he indicated he would delay a hearing to finalize the adoption until the U.S. Supreme Court weighed in on the broader same-sex marriage question nationally. Davis later recused himself from handling the adoption matter, citing his status as a defendant in Searcy’s newer lawsuit, and asked the Alabama Supreme Court to appoint someone else to take over.
In his recusal order, Davis expressed frustration with the level of media attention the case had drawn, writing that delaying the adoption until after the nation’s highest court ruled had been in the child’s best interest. “The litigation and conflicting orders on the issue of same-sex marriage have greatly failed the child in the matter at hand,” he wrote.
Searcy’s attorneys argue that under a 2001 change to state law, the proper procedure is for the presiding circuit judge — in Mobile County’s case, Judge Charles Graddick — to appoint Davis’ replacement, not the state Supreme Court. “That’s why our position is that it should have gone to Judge Graddick,” said Searcy’s attorney, Christine Hernandez.
Davis’ attorney, Teresa Petelos, countered that probate court operates differently from circuit court and that state law supports sending the appointment to the Alabama Supreme Court instead.
Hernandez said the uncertainty risks repeating the very delay Searcy has already experienced, especially if a newly appointed judge were to also recuse. “It’s as if it’s a hot potato,” she said, adding that she also has concerns about a potential conflict of interest among state Supreme Court justices tied to earlier orders in the broader marriage litigation.