Adoption On The Home Front: Arkansas Ban on Unmarried Couple Adoption in Court

Since there has been a lot of chatter about adoption here recently, I thought I’d call attention to this (slowly) developing story:  As a result of a voter initiative passed in 2008, Arkansas bans unmarried couples from adopting children.   Although it may not be obvious at first, the primary purpose of the ban is to prevent adoption by lesbian and gay couples.   The ban has been challenged in court and the story I’ve linked to describes the argument.    Here’s an earlier story that provides some of the background of the case.  

I’ve discussed the trend towards barring unmarried couple adoption  in the past.    Barring adoptions by lesbians and gay men–singly or in pairs–has proven to be politically infeasible.   Indeed, I think only one state–Florida–has such a law in place.   This, too, I have discussed before–the law dates from the Anita Bryant crusade and is currently the subject of litigation in Florida.    

In place of an explicitly anti-lesbian/gay adoption policy, a number of states have enacted statutes that prohibit adoption by unmarried couples.  Of course, since these states also prohibit marriage between two men and two women, they exclude all lesbians and gay couples from adopting.   They also reach unmarried heterosexual couples. 

There are therefore two ways to consider the legality of these restrictions:  you can analyze them as essentially anti-gay/lesbian adoption provisions with a thin disguise or you can analyze them as they are written–a ban applied to all unmarried couples.   Anyone challenging a statute would do well to make both arguments, of course, and that appears to be what happened here. 

As you can see, the Arkansas Supreme Court struck down an earlier policy that prohibited lesbians and gay men from becoming foster parents.   This suggests that the argument that lesbians and gay men are categorically unfit to parent are less likely to succeed. 

Perhaps the key point to note is this–individuals seeking to adopt are already screened by the state.   Thus, unless all unmarried couples are likely to be unfit, it’s hard to justify eliminating people without even examining the individuals involved.  

Notice that the plaintiffs include couples who would seem to be qualified–even uniquely qualified–the grandmother who is the only relative willing and able to adopt her grandchild now in foster care, say.   Even if it is the case that many unmarried couples would be unfit, excluding a fit couple because they, too, are unmarried is unfair.  

There’s a bit of irony here.   I think it might be more plausible to exclude couples who have chosen not to marry (though I would dispute the propriety of this as well.)  You could at least assert that the decision not to marry reflected some quality of the couple that might be important.  

Since lesbian and gay couples cannot marry, the group of lesbian and gay unmarried couples includes both couples who would marry if they could and those who would not choose to marry.   This being the case, even the argument that choosing not to marry reveals some defect relevant to adoption fails for lesbian and gay couples. 

But of course, we’ll have to wait to find out what the judge says.

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12 responses to “Adoption On The Home Front: Arkansas Ban on Unmarried Couple Adoption in Court

  1. Julie, as always you are thinking about the rights of adults to parent. Perhaps you should think about things from the perspective of children. That they should have the right if they have to be adopted, to be brought up by committed married parents and preferably a mom and dad.

  2. I disagree. Consider the child mentioned in the article–her grandmother wants to adopt her. She’s the only relative who does. The child has lived with her for some time. But the grandmother is in a stable long term relationship with a women, and so isn’t allowed to adopt. Isn’t it likely better for the child to stay in the known environment with the known caretaker rather than end up in foster care?

    Now I’ll agree that joint adoptions by unstable couples are not likely the best idea. But if it is a couple seeking to adopt, I’d say the issue is the stability of that couple, which is not necessarily ensured by marriage.

  3. Why would the grandmother need to adopt the child, couldn’t she act as guardian? I myself lived with my grandmother who was my guardian during my childhood and we had no problems.

  4. I think the grandmother needs to adopt so there is a permanant relationship with a caretaking adult. Guardianship is not permanant. I think it’s better for children and adults to have confidence in the durability of the caretaking relationships.

    It’s fairly common for relatives to adopt in settings like this and is generally thought to be good for the kids (assuming the adults are suitable, of course) as it ensures they have a continuing relationship with the extended family.

    More generally, I think we prefer to move kids out of foster care and into permanent families–which typically means adoptive families.

  5. I didn’t spend half a second worrying about the durability of my relationship with my grandmother. My mother had dies and now I was living with my mom’s mom, my grandma. It was fine, stable and happy. Adoption would frankly have confused me. I would have thought hey is she my mom or my grandma and why does she want to steal the role that her daughter played. Adoption is absolutely unnecessary for a child to be taken care of by close family members or even guardians appointed by will. A family court can agree a guardianship arrangement which can be permanent. On reflection I would have hated my grandmother adopting me. She is my grandma not my mother!

    • I do not mean for a moment to dispute your own experience, but it isn’t univeral. You have only to read the accounts of children who have had experience of foster care to know that a significant number of them desperately want a “forever family.” Confidence in the permanancy of the relationship can be tremendously important, and no comparable legal relationship is as permanent as parenthood.

      Beyond that, and from a more material point of view, an adopted child is entitled to various survivor benefits should their parent die. (I’m thinking here of social security, for example.) The child of a guardian typically does not have a similar entitlement.

      Different families will doubtless choose to discuss adoption with kids in different ways. I’m sure that many do not wish to erase the existence of the preceding parents, and stepping into the legal role of parent does not require you to do that. You don’t have to call an adoptive parent “mom” or anything else.

      • Julie I just checked on the Social Security website and survivor benefits will be paid to the deceased’s dependant children (this includes any child listed as a dependant on the deceased persons taxes such as a child for whom the deceased was a legal guardian or custodian) or dependant grand children or dependant step children. Interestingly enough the website is silent on adopted children because Adopters are legally known by unqualified genetic title, even if it is a lie by virtue of omission.

        I also checked and Cobra benefits are also paid to dependant children and at least in California it appears state employee retirement benefits will be paid to children who the deceased was legal guardian to.

        Its always been my understanding that the chief difference between adoption and guardianship was the right of the adoptors to unqualified genetic title over the adopted child, allowing the adopter to present the child as their offspring should they so choose. Adoption gives adopters the latitude to determine who does or does not need to know the truth about how the adopters came to be parents. However, adoption does not appear to give couples a greater advantage over guardianship in any other way than in concealing the adoption from the child and the public at large. Adoption is really no more permanant than Guardianship it effectively ends when the child becomes an adult. One additional exception to that would probably be that an adult raised by a guardian would not be the automatic beneficiary should the ex-guardian die without a will. Even biological children can have difficulty getting their inheritance in that situation.

        • I hate to say that this might be a commentary on the social security administration’s website, for that is where I, too, looked. For example, http://www.ssa.gov/pubs/10085.html#who which says:

          Your child can get benefits if he or she is your biological child, adopted child or dependent stepchild. (In some cases, your child also could be eligible for benefits on his or her grandparents’ earnings.)

          (This might well leave in the grandmother plaintiff in the Arkansas case, but not her partner.)

          Perhaps I do not know enough about guardianship–but that could be in part because the rights and obligations of a guardian vary state to state. I think in many places guardians can be replaced at will and can leave the post if they choose to.

          In the end the key question is whether the guardian holds the same rights and obligations that a legal parent does. If, as you say, a guardian has the same rights, then it’s back to the “what’s in a name” question. There I think we agree in part and disagree in part.

          I’m in favor of all people holding the same rights being called the same thing, without regard to how they acquire the legal rights. I’d do that because I think that’s what’s important–everyone in the category has the same rights. I continue not to see why the world needs to know which particular path you used to get to those rights.

          I’m willing, too, to have a second category name (forebear?) for all those who have a genetic relationship with a particular child. Some people might fall into one category and thus be called by either term, depending on what we were talking about.

          I’m don’t know what you mean by “unqualified genetic title over the adopted child.” But you’re right–adoption gives adopters the ability to decide who gets to know how they came to be parents. I’m good with that. Is there any reason why the grocery store clerk or the airline ticket people should be entitled to this information.

          • UNQUALIFIED: without use of the word adoptive as a qualifier.

            GENETIC TITLE: mother/father/parent

            over the adopted child

  6. This is in response to Marilynn Huff–I’m not sure it will display that clearly.

    Is it your view, then, that all the world should know which parents are genetically related to their kids and which are not? This only makes sense if you say that the distinction is important for all purposes. I disagree.

    Beyond that, it seems to me that you’d end up creating two classes of parents–one real unmodified parents, and the other somehow second-rate. It seems to me terribly destructive to do that.

  7. Julie I’ve been thinking about this more. I read your blog to get a broader understanding of all the issues so ultimately I can formulate an opinion that takes everything into consideration. So my position now is going to vary slightly from when I wrote the comment you are responding to. I figured out that my objection to the use of genetic titles such as mother/father/parent by people who are not genetically related to the child in that particular way. I really don’t care if people want to lie by omission to the soccer coach and I don’t think the soccer coach cares either, I think its confusing to the child but I guess my real concern is telling the truth to the child, not lying by omission to the child. Its becomming more and more uncommon which is great but the law still does leave it up to the people who adopt whether or not to tell the child or anyone else for that matter that the child was adopted by them rather than conceived. The opportunity to not tell the truth to the child is made through the right to genetic title on the birth certificate and in daily life. So I guess I don’t so much care about the titles other than I saw it as one way people can lie to the children they raise. I would just like to see the law adjusted to ensure every child born from now on knows if they are not the offspring of the people they call mom and dad. There are probably a million different ways to adjust the existing law that would achieve that same goal and I am open to all of them. One of those ways probably treats everyone possibly effected in a fair and reasonable manner. I certainly don’t want any family to be treated as if they are second class. That would be awfle

    • I appreciate your willingness to keep thinking about the topic. It’s not uncommon in our world today for people to become so committed to a particular position that they won’t consider it’s merits anymore. (I think we are all prone to this.)

      Using the parent terms publically is only confusing to the child if the child understands the relevant terms (“mother”, “father”, “parent”) as necessarily implying genetic linkage. I suppose this is sometimes true and sometimes not true? I do think that in the last generation, adoption became less a shameful secret and more a matter of fact point for family discussion. One has only to look at all the books designed for little children that deal with adoption to see that more people are talking with their kids about this earlier.

      One other thing I should note–I agree that people ought to tell their children if they are adopted. I think honesty is important. But realistically, it is hard to legislate a requirement like this. I cannot quite imagine a law that would say “all parents must tell their children the manner in which they were conceived/obtained.” One of the thing that comes with being a parent is the right to make decisions about what you tell your children without state interference. You could have a law that establishes any person’s right to obtain the original birth certificate at some point or something like that. But that’s not going to help until the child reaches adulthood, which I think is often rather late in the game.

      From a purely pragmatic point of view, the best option might just be to think of ways to encourage honesty within families. And the way to do that might include reducing the stigma surrounding various paths to family formation.

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