Arkansas Update: Adoption Restriction Argued Before State Supreme Court

Just a quick note to follow up on a case I have blogged about in the past.   You may recall that Arkansas is among a number of states that prohibit people in cohabiting unmarried couples from being adoptive or foster parents.   The case has just been argued in the Arkansas Supreme Court.   You can actually watch the argument   (the case is Arkansas v. Cole) and/or you can read Professor Nancy Polikoff’s analysis of the argument.  

Just a little background first:   Restrictions on adoption/fostering by those in non-marital relationships have become more common as it has proven both politically and legally difficult to categorically bar lesbian and gay people from adoption/fostering.  (Witness the recent fall of the Florida statute.)  In states where lesbians and gay couples cannot marry, a ban on individuals in unmarried cohabiting couples adopting eliminates all those in lesbian and gay couples from contention.   Of course, it also eliminates those in unmarried heterosexual couples, too.   And notably, it does not eliminate single people, be the lesbian, gay or whatever.

Arkansas has a statute like that and it was struck down by the Arkansas Circuit Court last year.   The proponents of the ban appealed that decision to the state supreme court.   That’s the argument that was just heard.

It’s interesting to listen to the general tenor of the argument.   The Arkansas Supreme Court–not a notably radical court–does not seem overly inclined to agree with the logic of the statute.  For starters, various justices noted that a person living with another person could adopt as long as the relationship with that other person wasn’t sexual.   That means in order to figure out if you are in the prohibited category, the state has to ask you about your private consensual sexual conduct.   That raises concerns about state intrusions into individual privacy. 

In general, the court seems to be fairly unsympathetic to the state’s position.   After all, anyone who is going to be allowed to foster or adopt is individually screened.   No one really tried to argue that all people who are in non-marital cohabiting relationships are unsuitable.  Indeed, the facts of this case (if you go back and read the earlier post) show at least one perfectly suitable person.  So why bar everyone in the group if it isn’t because of some desire to punish or otherwise stigmatize? 

That will ultimately be the question the court has to take up.  Stay tuned.

One response to “Arkansas Update: Adoption Restriction Argued Before State Supreme Court

  1. Marriage obligates spouses to financially support each other, not their children. So the only acceptable, non discriminatory reason the law could require children to be adopted by married couples would be to replicate the two sources of financial support all children are entitled to from birth from the parents who are giving them up for adoption. It makes sense that the law would require children to be adopted into a situation where two people were individually responsible for supporting the child just as the child’s parents were.
    Which brings me to the single thing; if your single and want to be an adoptive parent, and you have a friend or lover or actually even a total stranger that is also single and also wants to be an adoptive parent it appears to me that as a couple of adoptive parents, they, in their single-hood will replace two sources of support being lost to the child while it’s impossible for a single person to ever do that no matter how much money they make. No matter how much money one person can make its not equal to having two individuals committing to support an adoptive child for life as individuals married or not. Someone who adopts when they are single, can get married, and in the event they could not provide for their adopted child their spouse would have to, but as a step parent, rather than as a parent. Being married signs you up to meet your spouses financial obligations, that includes your spouses children or adopted children, but that obligation ends when the marriage ends unless of course the child also happens to be your child or adopted child.

    So it seems kind of like the law owes it to kids to find not 1 but 2 adoptive parents in order to provide the 2 sources of support they have a right to rely upon from birth. I actually don’t see how the law can say the potential adoptive parents have to be married or even live together so long as they had some reasonable plan for sharing custody of the child. It seems that would be the least ideal adoptive situation, replicating what happens in the event of a divorce and potential adoptive parents who lived together would be a better option for the child because the child could see both parents every day. But they would not be obligated to support each other in case one of them lost a job so, not quite as good an option for the child as potential adoptive parents who were married at the time of adoption.
    So maybe being adopted by a single person should be a last resort only offered to single people who have established themselves in a relationship with the child because it really does not give that 2 sources of support the chiled deserves. I can see this rule as a real bendable one though. I can’t see how the law could continue with any policy that makes a person’s sexual orientation a determining factor it is so horribly unfair and discriminatory because the adoptive parent/child relationship is about that person’s commitment to the child, not their relationship to any other adult.
    Raised in SF, Gay and Lesbian parents are a dime a dozen, even 25-30 years ago when I was in school. Now what I have to say is not fair to heterosexual parents, but honestly if your a female looking to date a guy you can’t do any better than a guy raised by his mom and her partner (with the caveat that they know who their his pop is). There is something about two female authority figures that does wonders for the less pallet-able features of the male character. They are not less masculine, they’re just more respectful of women. I’m ready to accept backlash for that opinion because its anecdotal.

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