Law Gone Wrong: Adoption in the Context of Same-Sex Relationships

Posted on Categories Family Law, Wisconsin Law & Legal System

Today’s post is the first in an occasional series entitled “Law Gone Wrong.”  The editors of the Faculty Blog invited Law School faculty to share their thoughts on misguided statutes, disastrous judicial decisions, and other examples where the law has gone wrong (and needs to be nudged back on course).  First up is Professor David Papke.  

As currently written, WIS. STAT.  48.92 – Effect of Adoption is a bad statute with unintended results.  The statute says that, with the exception of stepparent adoptions, an adoption ends all legal relationships between the adopted child and that child’s biological parents.  Put in blunter words, the rights of all biological parents are terminated when an adoption is finalized. This statute no doubt grows out a determination to normalize the lives of adopted children.  They are to have only one set of parents and to know just who those parents are.  On a deeper level, the statute reflects the possessive imperatives so central in the dominant American world view and extends it to adoptive children.

The great problem with the statute involves same-sex couples with children.  It is increasingly common for one member of a same-sex partnership to have a child brought into the relationship from a prior opposite-sex marriage, as a result of adoption, or conceived via artificial insemination.  Call this the “pre-existing parent” in the same-sex partnership.  The pre-existing parent might want their same-sex partner to adopt any children brought into the relationship.  In such cases, the second partner might be perceived as a parent by the child or children, and the second partner might be ready and willing to adopt any child from a previous relationship.  However, if this adoption is finalized in Wisconsin, the statute operates to automatically terminate the parental rights of the pre-existing parent -– a patently unwanted result given a hope to achieve some degree of family unification through adoption.  For a judicial confirmation of the absurd result of the Wisconsin statute, see Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W. 2d 678 (1994).

What could be done to fix WIS. STA.  48.92?  A whole new statute allowing and facilitating adoption by same-sex partners would be the best solution, but one fears the state’s current hostility toward expanding gay rights would make this difficult to achieve.  Alternatively, one could change the existing statute to create an exception for same-sex partners seeking to adopt their partners’ children.  As noted above, the statute already includes a comparable exception for stepparents adopting their spouses’ children.  Stepparents, after all, would also consider it absurd if the act of adopting their stepchildren terminated the parental rights of the pre-existing parent in the relationship.

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