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

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.

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Not Invited Back

If you ventured into Barnes & Noble this holiday season, you may have been asked to buy a book to be donated to foster children.   The available options are displayed on shelves behind the cashiers: mostly an array of classic picture books for small children, with a smattering of selections for older grade-schoolers.  I think this comports with the image that pops into the average person’s head when the term “foster child” is uttered.  We imagine frightened, small children who have been rescued from violent or deprived homes and placed with earnest, supportive foster parents.  Of course, we know the reality is more complicated, and that there are plenty of older kids and teenagers in foster care, and that the skills and dedication of foster parents vary considerably.  A recent piece in the New York Times shines a spotlight on another aspect of the foster care system: the children who are in the system not because they were plucked away from their parents by Child Protective Services, but because their parents voluntarily surrendered them to foster care.

The article, one in a series of profiles of persons who benefit from the NYT Neediest Cases fund appeal, gives us a snapshot view of Lydia Monserrate, a 21-year-old who recently aged out of foster care. 

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Do We Believe in No-Fault Divorce?

The Style section of the Sunday New York Times usually has two pages of thumbnail wedding announcements (complete with tiny, charming photos), and one larger box entitled “Vows,” in which one lucky couple’s union is featured.  This past Sunday, the Vows column created a firestorm.   The featured couple – Carol Anne Riddell and John Partilla – proudly described how their romance began when they were both married to other people, and how they met in a pre-kindergarten classroom at the school attended by their children (each has two children from a first marriage).  Although they assert that they kept it platonic for a long while, they eventually declared their love for each other, divorced their first spouses, and celebrated their marriage in the recent ceremony featured in the Times.  They described their life together as full of love, although they concede that they have hurt their former spouses and children, and they profess regret for having done so.

Certainly Riddell and Partilla aren’t the first unfaithful spouses to end up together, and they won’t be the last.  What is surprising is the frenzy of overwhelmingly negative reader comments to the Times.  “Why does the Times glorify home-wrecking?” queried David from NY.  A commenter identifying himself as Dr. Dubs from NYC was outraged: “So you’re telling me, as long as I’m happy, who cares what happens to my legally wedded spouse and kids?” he stormed.  “This story reeks of selfishness.”  Funny valentine from New Jersey commented that the Vows column “was absolutely the saddest story in the NYT, save the obits.”

Why the uproar in this era of no-fault divorce, not to mention in a society with a divorce rate of around 50 percent?

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