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MONTGOMERY, Ala. -- The couple whose lawsuit overturned Alabama's gay marriage ban is headed back to court after a probate judge again refused to grant their adoption petition.


Cari Searcy and Kim McKeand filed the new lawsuit Tuesday against Mobile County Probate Judge Don Davis. Searcy is seeking to be recognized as a legal parent to their 9-year-old son.

Davis on Friday issued an "interlocutory decree" granting Searcy temporary parental rights. However, Davis said he would not issue a final adoption order until the U.S. Supreme Court rules on the marriage cases before it. That's even though Davis' office is issuing marriage licenses to same-sex couples after being directed to do so by a federal judge

"It's frustrating. There is no legal justification for the court to do this," said David Kennedy, a lawyer representing the couple.

Harry V. Satterwhite, a lawyer representing Davis, cited ongoing appeals of gay marriage rulings as a reason for delaying the petition

"Right now, his approach is to remain neutral," Satterwhite said.

Searcy and Kim McKeand filed the lawsuit that led to U.S. District Judge Callie Granade on Jan. 23 to declare Alabama's gay marriage ban unconstitutional and making Alabama the 37th state where gays and lesbians wed.

Davis had initially shut his offices' marriage license division completely, citing a conflicting directive from Alabama Chief Justice Roy Moore to refuse the licenses. Granade on Feb. 12 said Davis could not deny marriage licenses to couples because they were gay. Davis opened the office that afternoon and gay couples began marrying.

Satterwhite said the adoption petition was a different case, but that Davis would abide by direction from the court.

Searcy and McKeand have been together for 16 years. McKeand gave birth to their son with the help of a sperm donor. The Mobile couple legally wed in California, but Searcy's adoption petition was rejected because the women weren't spouses under Alabama law.

"We planned and created him together. He has my last name," Searcy said.

Searcy said it was frustrating to hit another stumbling block after a nine-year legal fight to be recognized as the boy's parent.

"I thought it was pretty clear that we already won," Searcy said.