A Parting Thought on the Kentucky Second-Parent Adoption Case

I’ve been considering this Kentucky case for some days now.   In the last post I used it as a jumping off point for some more general thoughts about adoption.   I’m going to continue in that vein here.

One thing is both obvious and striking about the Kentucky case–if the parties (known as S and T) had been married, then the outcome would be different.   Step-parent adoptions are routinely available.    The question I want to examine is why marriage should make such a big difference.

First off, note that marriage often makes a big difference in ability to adopt generally, not just in step-parent adoptions either.   In some places single people and unmarried couples are barred from adoption.   (Among other things, this can pull lesbian and gay parenting into the same-sex marriage debate and vice versa.  That’s worthy of a much more extended discussion, but note that right now Arkansas voters are considering a ballot measure to prohibit unmarried couples from adopting or becoming foster parents.  This would necessarily have the effect of prohibiting lesbian and gay couples from becoming adoptive or foster parents because, of course, Arkansas will not recognize them as a married couple, even if they travel to MA or CA and get married.   While there is reason to think this is the main point of the initiative, it is couched in terms of married/unmarried, presumably because that is more politically appealing.)   

While I want to flag the larger significance of the marriage/adoption link for another time, here I want only to talk about the impact of marriage in this one context.   Marriage makes the difference between something being considered a proper step-parent adoption and an (in Kentucky, anyway) and improper second-parent adoption.

It’s not hard to see why the adoption of a child by a person who plans to co-parent with an already recognized legal parent might be treated as a special case.   As I discussed last time, this is an instance where you want to add a new parent while retaining existing parents rather than replace existing parent(s).  As long as the existing parent(s) is supporting the proposal, it seems like it is probably a good idea.   Generally speaking we rely on parents to know what is best for their children.   So if the existing parent wants the new person to join in, we can mostly assume that is good for the child.  (Of course, this isn’t always going to be true.  I’m not suggesting an automatic adoption.)

It seems to me that the things you might care most about in assessing the appropriateness of adding a new parent are 1) the relationship between the new person and the child and 2) the relationship between the existing parent(s) and the new parent.   And perhaps, given the assumption we usually make about parents and children, you’d do this with a presumption in favor of the adoption.

All well and good.  But the question is whether there is any good reason for viewing instances where the proposed new parent is married to the existing parent particularly favorably and rejecting out of hand those instances where the existing parent and the proposed new parent are not married.

I suspect we use marriage as a proxy for “stable healthy couple” here.   But given the state of modern marriage, I wonder how good it is for that.  It isn’t that I think the majority of marriages don’t fit the bill.  It’s that some marriages do and some don’t, even as some non-marital relationships do and some don’t.   Using marriage as the dividing line between the allowed step-parent adoption and the prohibited second-parent adoption, as Kentucky does, seems to me to miss on both ends–it allows adoptions where perhaps we should not and it prohibits adoptions where we should allow them.  If the answer to the former problem is that there is a case-by-case examination to see whether the adoption is in the best interests of the child, then it seems to me that takes care of concerns in the second-parent adoption setting as well.