Thursday, February 17, 2011

Why Second Parent Adoption is a Good Thing

I posted a while back when the North Carolina Supreme  Court voided a second parent adoption there. (This article has a good summary of the facts, and you can read the court opinion here).

The person seeking to void the adoption was a woman who was ending a relationship with her female partner.  The woman was the biological mother of the child, which had been conceived through donor insemination during the relationship, her partner had been involved with the pregnancy, birth and parenting.  The two went to court to have the partner adopt the child;  the biological mother who is now contesting the adoption consented at that time to the adoption.  The trial court granted the adoption, the time for challenging that ruling passed with nothing done by the biological mom.  When the couple split up and were trying to work out custody, the mom decided that her child had only one parent, her, because the adoption was void.

So how does this second-parent adoption thing work anyway?  Well, it used to be there were no special laws allowing a step-parent or second-parent adoption, so when a second parent wanted to adopt, the regular adoption rules applied.  That meant to be adoptable, the child had to have BOTH PARENTS' parental rights terminated.  That's right, when Wanda remarried and wanted Hubert to adopt her child, Wanda FIRST had to relinquish her parental rights in the child, the bio dad's rights had to be relinquished or terminated, and then Wanda and Hubert had to adopt the child as a couple.

Not surprisingly, Wanda wasn't eager to go this route.  She would have to relinquish her parental rights, just like any placing birth mom, and no matter how often we tout the birth-mom-as-saint theme, many people pass negative judgments on women who terminate their parental rights.  Would Wanda want to face that judgment, which might include a self-imposed judgment?

If Wanda did relinquish, she'd have to hope that the court would allow her to adopt her biological child.  And what if the court decides not to allow it, after the home study, the six months probationary period, etc.? Maybe someone calls Child Protective Services with an unfounded allegation of abuse; or maybe Hubert loses his business; or maybe Wanda gets diagnosed with cancer?  All of those could cause a judge to decide the adoption wasn't in the best interest of the child. What happens if Wanda and Hubert divorce, and the state doesn't permit single persons (Wanda's new state) to adopt or requires Wanda to take a back seat to any petitioning married couple?  Suddenly she has no legal relationship with her own child.

And even if the adoption is allowed, suddenly the biological relationship isn't what gives the mom parental rights, it's the adoption.  And no matter how much we trumpet the "same as" narrative of adoption -- it's the same as having children by birth -- most parents would feel it different, and probably inferior, to have an adoptive relationship with the child they birthed.

So, starting in the '70s & '80s, with the burgeoning rate of divorce and second marriages, legislatures started to pass step-parent/second-parent adoption statutes that allowed for a second parent adoption without the biological parent having to terminate her parental rights.  Legislatures also exempted second parent adoptions from screening rules like the home study and probationary periods before the adoption.  The thought was that the child already was living in a familial relationship with the second parent, so all the courts were doing was giving legal status to an already existing relationship. 

Then came the debate about second parent adoptions by unmarried couples, whether gay or straight.  Did a particular states' statute permit only married couples to follow the step-parent/second-parent exception? There's a real mish-mash of statutes and case law and individual court practice on whether unmarried couples can qualify for second-parent adoptions. Three states -- Colorado, Connecticut & Vermont -- authorize second-parent adoption by statute, regardless of marriage or sexual orientation. Appellate courts in a number of states have ruled that the state adoption law permits second-parent adoption, regardless of marriage or sexual orientation, based on a statute authorizing the "spouse" of a parent to adopt. A dozen or so states have no appellate court ruling on the matter, but state trial courts routinely allow second-parent adoptions. Appellate courts have ruled that state adoption law does NOT permit second-parent adoption unless a couple is married in Nebraska, Ohio, and Wisconsin. That leaves about 20 states where it is uncertain whether the state adoption law permits second- parent adoptions by unmarried couples, whether gay or straight.

And that was the issue faced by the North Carolina Supreme Court.  They chose to interprete their statutory scheme to require termination of ALL parental rights before a second parent adoption, unless the adopting parent was the spouse of the biological parent.  Thus, over 5 years after the fact, they said the adoption was void.

After all that legal stuff, I'm not going to make a legal argument about whether the North Carolina Supreme Court was legally right or legally wrong.  I'm going to make a policy argument, and public policy is clearly something courts can take into account in interpreting statutes, especially adoption statutes which most state legislatures (including North Carolina's) say should be liberally construed so as to effectuate the best interest of the child.

Remember the post about the proposed Arizona statute limiting single parent adoption?  Most commenters opined that it was better for children to have two parents.  If that's the case, why do we want to limit second-parent adoptions?  What second-parent adoptions do is make legal an already existing familial relationship.  Even if you are opposed to gay marriage or gay parenting, denying a second-parent adoption isn't going to stop this gay couple from parenting their child -- they'll just have to do it with limited protections for the child.  Is it fair to punish the child for the "sins" of the parents?

All that a legal second-parent adoption does is makes sure that there are two parents who have the obligation to support the child financially -- even if the couple splits up.  It makes sure that there are two parents from whom the child can inherit even if the second parent doesn't have a will.  It makes sure that there are two parents from whom the child can receive Social Security disability and death benefits.  It makes sure that the child can continue to have a relationship with the step-parent after the parents divorce, or if the biological parent dies.  It makes sure that schools, hospitals, Little League teams, etc., can't treat this parent -- who has been living with and raising the child in fact -- as a legal stranger to the child.

Isn't it in the child's best interest to legalize an already existing familial relationship?  It's not like saying no to the adoption will end the relationship, it's just have to limp along without the child having all the legal rights the child is entitled to.

1 comment:

Sunday Koffron Taylor said...

I wouldn’t have given this much thought before December, when my cousin died of a massive heart attack at 47 (damn genetics!). She and her husband had adopted a child (as a toddler), divorced and then she moved in with her same sex partner and they had raised the child together for several years. I have no idea who will end up raising this poor child who has already lost so much- His first/natural family, his second father, the death of his second mother, now he could lose his third mother and go back to an adopted father he hasn’t lived with for years, or to his elderly and ill adopted maternal grandparents???!!! The whole situation is so sad and heartbreaking I just can’t wrap my mind around it.

Whether I believe that the adoption should have happened in the first place, I believe that a child who has already lost so much should have the option of staying with a same sex partner if that is what is truly in his best interests.