Home is Where the Families Are: Open Adoption in Wisconsin?

Posted on Categories Family Law, Public, Student Contributor

parent & child hands holding cut-out of houseThis semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Brooklyn Kemp.

What makes a house a home is not merely the brick and mortar of a building, but the foundation of a family. As the saying goes, “home is where the heart is”–where one experiences love, support, and growth.

As a student in the Guardian Ad Litem workshop this semester, I have become more aware of the reality that some children do not have a place to call “home” until they are adopted, after their natural parents’ parental rights are terminated through a court order. This can be a lengthy and emotionally debilitating process. Although in some circumstances children get a happy ending with a nurturing family, other children are traumatized when they realize they will never see their parents again.

Even children who are able to manage the emotional turmoil may end up being stuck in foster care, a temporary home, for long periods of time as their parents oppose termination of their rights to the children.

Open adoption occurs when the natural parents still have ongoing contact with the child whom they have relinquished for the adoption. Some states have embraced the idea of open adoption, codifying it into statutory provisions.

Wisconsin currently does not legally recognize open adoption. The Wisconsin Supreme Court has held that promises between the natural parents and the adoptive parents that allow the natural parents to maintain contact with the child are legally unenforceable. For cases that discuss the unenforceability of open adoption agreements, see In re Termination of Parental Rights to Darryl T.-H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475 and Stickles v. Reichardt, 234 N.W. 728 (Wis. 1931).

Although this current state of the law repudiates the concept of open adoption, Wisconsin may want to consider altering its current adoption scheme to allow for open adoption when it is in the best interests of the child.

Benefits of Open Adoption in Wisconsin

  1. Ease the stress on the foster care system?

With an estimated 350 children being removed from the home each month, according to 2016 statistics, Wisconsin is in desperate need of more foster parents. Although it is unclear that implementing open adoption will alleviate some of the stresses, there is potential. Terminating parental rights can be a lengthy process that only contributes to the inadequate housing available in foster care.

Open adoption could help to lessen some of the strain on the system because open adoption may, in some instances, reduce the amount of time children will be in foster care, opening up space for more children in the foster families. Of course, this does not take into account the amount of time to find an adoptive family, but it may shorten the amount of time of termination of parental rights (TPR) contestation in some instances.

  1. Aiding Emotional Health of Children

Open adoption may benefit children and natural parents by allowing them to preserve some semblance of a relationship.  Children, particularly older children who have developed relationships with their parents, may suffer emotional hardship when permanently separated from their natural parents.

Additionally, children may have siblings who are still living with the natural parents.  Open adoption could allow children to retain their connections to their natural parents and siblings if doing so is in the children’s best interests.

Negatives of Open Adoption in Wisconsin

  1. Deterrent for some families considering adopting

The possibility of natural parents interfering with the child’s life in the adoptive family may deter many families from wanting to adopt. However, some studies indicate that perhaps this may not be as prevalent as many would think.

According to these studies, 94%of adoptive mothers and 85% of adoptive fathers who participated in the study were satisfied or very satisfied with the open adoption.

  1. Detriment to the children

Children may be upset or confused by continued parental visitation. Additionally, the presence of their natural parents may hinder children’s ability to assimilate into a new family, especially as the children are unsure of whom to view as the ultimate authority figures.

  1. Logistical Difficulties

The terms of an open adoption may need to be enforced or modified by a court in accordance with changed circumstances or if the child’s best interests are no longer best served by the agreement.

Continuing jurisdiction over the case will require the use of precious judicial resources and may result in further intrusion into the adoptive family’s life, disrupting the stability of the child.

For more information on the benefits and negatives of open adoption, see Cynthia E. Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol’y & L. 275 (1995) and Judy E. Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 633, (1984), as well as the America Adopts homepage.

Prevailing Consideration: Best Interests of the Child

In terminating parental rights, courts consider the best interests of the child, analyzing a variety of factors under Wisconsin Statute 48.426. If Wisconsin ever chooses to authorize open adoption, it could be considered under this statute if the natural parents and the adoptive parents both consent.

At that point, it is necessary to determine if open adoption would be in the best interests of the child according to some of the same factors as are used in considering whether parental rights should be terminated. Some important considerations under the statute in the context of open adoption may be looking at the relationship between the child and the natural parents and considering the age of the child.

There are both advantages and disadvantages to permitting open adoption in Wisconsin and balancing these considerations may not give us an obvious answer as to whether open adoption is the best choice for the state. However, if Wisconsin does choose to enact some sort of open adoption law, the state should consider carefully whether open adoption is suitable for a specific child, using a standard that evaluates what is in the child’s best interests.

When in the best interests of the children, open adoption may help children finally find a place to call home, without taking away the foundation of their past.

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