Family Law Prof Blog

Johnson: "A Suggested Solution to the Problem of Intestate Succession in Non-Traditional Family Arrangements – Taking the ‘Adoption’ (and the Inequity) Out of the Doctrine of ‘Equitable Adoption’"

Irene Johnson (Pace University School of Law) has posted "A Suggested Solution to the Problem of Intestate Succession in Non-Traditional Family Arrangements – Taking the ‘Adoption’ (and the Inequity) Out of the Doctrine of ‘Equitable Adoption’" on SSRN.  Here is the abstract:

This article examines the judicially created doctrine of equitable adoption under which a child who has been raised by people who are not the child’s birth parents and who, in the traditional doctrine, had promised to adopt the child but had not done so will be permitted to inherit from the “parent” or “parents” who have raised the child if these “parents” have died intestate. After examining the traditional equitable adoption doctrine and demonstrating the several difficulties with the doctrine in terms of the theories on which it is based and the requirements imposed for finding an equitable adoption, the article proceeds to discuss the major difficulty with the doctrine – its under inclusiveness and the disproportionate impact that this under inclusiveness has on economically disadvantaged communities. The article proposes an amendment to intestate succession statutes which would permit many more children to inherit from the people who have raised them.

The article exposes an important defect with the current equitable adoption doctrine – the use of the term “adoption” to refer to a circumstance in which a legal adoption might not have been possible. The article also considers the issues of the modern family and how the equitable adoption doctrine is not responsive to the needs of members of non-traditional family arrangements, the reasons that people fail to adopt children about whom they may have promised adoption, the reasons that people die intestate rather than having a will, and the purposes to be accomplished by intestate succession statutes. The article concludes with a statutory proposal which would eliminate many of the inequities of the equitable adoption doctrine while still being consistent with the goals of intestacy statutes.

AC

Mass Adoptions

In Pennsylvania recently, on National Adoption Day precisely, 49 children were adopted by dozens of families at the Allegheny County Family Court.  Read more here. 

MR

Reality Adoption Show Premiering Tonight

ABC begins a run of a show called "Find My Family" tonight, which is a reality show centered around adoption.  Members of the adoptive community are nervous, and I suppose we'll see tonight whether such a show can be done in good taste.

AC

Child Advertised for Adoption on Craigslist

Is it a scam, or an anxious young woman seeking a home for her baby?

That's the question Federal Way police are trying to answer as they trace the person who posted an ad on Craigslist offering an unborn child for adoption.

"Maybe she's just ignorant of the law, and we can point her in the right direction," police spokesman Raymond Bunk said.

The poster described herself as 22 years old and 5 months pregnant. She said she was looking for a wealthy couple to adopt the baby and pay her medical expenses.

Independent adoptions are legal in the state, and so is the practice of adoptive parents paying the birth mother's expenses. But under state law, only licensed agencies or the Department of Social and Health Services can advertise a child for adoption.

Read the Seattle Times story here.

AC

Trafficking in Children - From the Adoptive Parent Perspective

There have been a number of reports lately, from all over the globe, of children being kidnapped from their parents and sold or otherwise placed for adoption without their biological parents' consent.  See, for instance, this article about Korean adoptees pressing for change in the Korean adoption system.  The tone of most writings on this issue always seems to bother me, as I read into it a vilification of adoptive parents.  A report in the Los Angeles Times today raises questions about which more dialogue needs to occur:  What steps should prospective adoptive parents take before adopting from Korea, China, or other countries with a history of trafficking allegations?  What are adoptive parents like those interviewed for LA Times story, whose adoptions are already complete, to do?

AC

November is National Adoption Awareness Month

Read about this year's theme here or visit this site for ideas on what you can do to help.

AC

Adoption Agency Director Guilty of Grand Theft

The former director of a Florida adoption agency pleaded guilty to first degree grand theft for bilking prospective adoptive parents out of more than $178,000.

According to the investigation conducted by the Florida Department of Law Enforcement, [Debra] West and her agency [Adoptions by Choice] collected birth mother expenses from adoptive couples under the guise that the money would be extended to the birth mother, but would extend little or none of it to the birth mother. West and her agency would then submit fraudulent affidavits to the court, claiming to have spent all the couple’s money faithfully.

Many of the fraudulent affidavits claimed thousands of dollars were spent on hospital-related expenses associated with the birth mother’s pregnancy when in reality, the birth mothers were covered by Medicaid or private insurance. In some cases, where money was actually extended to the birth mother on the adoptive couple’s behalf, West would submit proof of the payments to a charitable organization known to reimburse adoption agencies for birth mother expenses. In most cases, West, through her agency, ended up pocketing the vast majority of the money and creating false documents in order to conceal the embezzlement.

Read the full story here.

AC

Racial Bias in Adoption

This story describes the work of one advocacy group to call attention to racial bias plaguing the domestic adoption system.  Focusing on Texas, the article notes that:

Black and Hispanic children account for more than two-thirds of all Texas youngsters waiting for adoption, according to Family and Protective Services figures.

Half of the 174 children waiting for adoption in Lubbock County last year were Hispanic, even though the county's Hispanic population is 30 percent.

Statewide, a white child waits 28.7 months to be adopted while an African-American youngster waits 31.7 months and a Hispanic child 29.2 months.

Those figures don't surprise Richard Wexler, executive director of the National Coalition for Child Protection Reform, a nonprofit group in Alexandria, Va.

"Let's face it, the adoption process reflects the racial prejudices and biases in our society," Wexler said. "An African-American or a Hispanic child is more likely to be taken away from his or her parents than a white child. And when a white child is up for adoption he or she will find a home sooner than an African-American or a Hispanic child."

Those numbers are not all that surprising, and I'd be willing to bet they're quite similar nationwide.  What was more interesting to me is the claim that "social workers remove disproportionate numbers of non-white youngsters from families suspected of abuse or neglect, according to state records."  No Texas data supporting that claim was given.  And of course, it is difficult to judge how meaningful those numbers are given the non-homogeneous nature of abuse and neglect allegations.  Still, I do wonder whether the data nationally is consistent.  Looking at the numbers (percentages) alone, is it true in all states that non-white families are more likely to have their children removed after an abuse or neglect investigation than are their white counterparts?

AC

Ohio Adoptees Kept in Cages File Suit

The New York Times reports the latest in the case involving the Torrence family (read this older post about the early developments in the case):

Two Ohio teenagers forced by their adoptive parents to sleep in cages have sued the couple and caseworkers who arranged the adoptions. The lawsuit was filed Tuesday in Cuyahoga County Common Pleas Court in Cleveland on behalf of Sharen Torrence, 18, and Michael Gravelle, 17. Their adoptive parents, Michael and Sharen Gravelle, named the children after them. The couple are now serving two-year prison terms for abusing some of their 11 adopted special-needs children. The suit also names caseworkers and the Hamilton County Department of Job and Family Services in Cincinnati. It said the Gravelles were unfit to be parents and should never have gotten custody of the children. Julie Wilson, a spokeswoman for the Hamilton County prosecutor’s office, declined to comment.

AC

Symposium on Unmarried Couple Adoption Bans

The Arkansas Law Review will host a symposium on the Unmarried Couple Adoption Ban on November 5, 2009, at the University of Arkansas School of Law in Fayetteville, Arkansas.  The symposium will address the legal and political issues surrounding what was Arkansas’s Initiated Act 1, banning the adoption of children by unmarried couples in the state, as well as the national context in which it was passed.  It will represent a balanced presentation of the various viewpoints on this widely debated issue. 

Primary speakers will be Professor Mark Strasser of Capital University School of Law and Professor Lynn Wardle of Brigham Young University Law School.  Representatives from Arkansas Advocates for Children & Families and the Family Council Action Committee will also speak.

AC

Call for Papers on Adoption - FRIDAY deadline

The Future of the Family: Modern Challenges in Adoption Law

Sixth Annual Wells Conference on Adoption Law

 

March 11, 2010

Capital University Law School

Columbus, Ohio

 

The conference is seeking proposals for presentations and papers emphasizing the following themes:

 

v      The Impact of the Economic Crisis on Families

Suggested topics include, but are not limited to: available funding for subsidies, decisions to delay adoption, role of the extended family, and impact on the number of children placed for adoption.

 

v      The Impact of Artificial Reproduction on Families

Suggested topics include, but are not limited to: the state’s role in regulating artificial reproduction, the right not to procreate, legal issues involving unused embryos, and resolution of rights and responsibilities in embryo donation and adoption.

 

v      Overcoming Barriers to the Creation of Families for Members of the GLBT Community

Suggested topics include, but are not limited to: laws and public policies limiting adoption by GLBT parents, the impact of these laws from the perspective of the child's right to permanence, empirical studies on outcomes for children, and alternatives available when second parent adoptions are not permitted.

 

Participants are asked to a lead a panel discussion on one of the topics above.  Each topic will have 3-4 panel members who will present 30-45 minutes each, with discussion to follow.  In addition, participants are requested to prepare an article associated with their presentation for publication in the Capital University Law Review next year.  The article would be due on September 1, 2010.

 

Capital University Law School is home to the National Center for Adoption Law & Policy.  In light of the University’s strong focus on child welfare and adoption law, the Capital University Law Review initiated the Wells Conference on Adoption Law in 2005.  The First Annual Wells Conference was entitled “Illuminating the Child’s Perspective,” and highlighted speakers such as Barbara Bennett Woodhouse, Elizabeth Bartholet, and Martin Guggenheim.  Subsequent topics have included Father’s Rights in Adoption, Hearing the Child’s Voice, and Challenges to Permanency, and have highlighted presentations by Lynn D. Wardle, Katheryn D. Katz, Mary Beck, Cynthia Mabry, and Jini L. Roby.

 

Please send your proposals to the Wells Conference Committee Chair, Alisa Hardy (ahardy@law.capital.edu) by October 16, 2009. 

 

AC

Second Parent Adoption, DOMA, and Genetic Child

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

 
This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.

RR

New York City allows two-moms on birth certificate

As NY 1, among others, reported:

Married lesbian couples in the city can now be listed as parents on their children’s birth certificates.

The city Board of Health voted in favor of the change yesterday.

Previously, women would have to go through an adoption process to be listed as the official parents.

The state made a similar move in December, after a court ruling and an order from Governor David Paterson that state agencies respect out-of-state gay marriages. But the city DOH operates independently of the state, and made its own decision.

Married male couples still will need to adopt their children in order to be officially listed as their parents.

New York does not permit same-sex couples to marry, so the reference is to couples married in other states or Canada.

RR

Adoption Law Conference

RR

Ohio adopts rules for Guardians Ad Litem

Completing a process begun in 2001, the Supreme Court of Ohio has adopted new rules governing the requirements for guardians ad litem in juvenile and domestic child custody cases.   The new rule 48 provides that courts must enter an order appointing either a GAL or a GAL and attorney advocate for the child. The rule includes a broad range of responsibilities for Guardians ad Litem, which are mandated unless impracticable or inadvisable.  These responsibilities include interviewing the parents and child and visiting the child in his or her residence.  All GALs are required to  file a written, final report at least seven days before a final hearing. 
Read the new rule 48 here (as a word document).

The new rule follows an extensive study of the Ohio GAL system which examined GAL services provided to abused and neglected children throughout the state.  The data for the study was collected through surveying guardians ad litem, juvenile/family court judges and through information contained in a sample of local court records.  Many of the recommendations from that report have found their way into the new rule.  Read the Ohio CASA/GAL Study Committee's Final Report: In the Interest of Abused and Neglected Children. (last visited Feb. 2, 2009 bgf)

Florida Bar Association votes to file amicus in favor of adoption by gay couples

The National Law Journal reports that Florida Bar's board of governors voted unanimously to file an amicus brief before the 3rd District Court of Appeal supporting a Miami-Dade circuit judge's ruling that declared unconstitutional the state's ban on gay adoptions.  Circuit Judge Cindy Lederman ruled in November that the state's ban on gay adoption was unconstitutional. bgf

Sexual Orientation & Adoption

Two commentaries today on the subject of so-called "gay adoption" which we've blogged previously here and here, are worth reading:

First, FamilyLawProf Julie Shapiro blogs on the subject here, with useful links.  She ponders about the possibility of a national trend toward anti-gay adoption statutes, concluding there is not such a trend.

Second, David Ambroz has an op-ed in the LA Times here, writing as a former foster child and now adult gay man who hopes to adopt.

These might make interesting additions to a Family Law discussion forum on the course website.

RR

Presidential Family Agenda

The new Presidential website - - - www.whitehouse.gov - - - complete with its own blog, is a wealth of information regarding the new Administration's family law agenda.  It has some specific proposals and ideas, which might inform classroom discussions, class problems, or even (for those FamilyLaw Profs already thinking ahead at the beginning of this semester) exam questions.

Here's a sampling from the "family" portion of the website, many of which pertain to economic matters:

• Expand the Family and Medical Leave Act (FMLA): The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children's academic activities at school; leave for workers who care for individuals who reside in their home for 6 months or more; and leave for employees to address domestic violence and sexual assault.
• Encourage States to Adopt Paid Leave: President Barack Obama will initiate a 50 state strategy to encourage all of the states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Barack Obama and Joe Biden will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve one million more children. They will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Barack Obama and Joe Biden will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Barack Obama and Joe Biden will address this concern by creating a program to inform businesses about the benefits of flexible work schedules for productivity and establishing positive workplaces; helping businesses create flexible work opportunities; and increasing federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to petition to request flexible arrangements.

• Strengthen Fatherhood and Families: Barack Obama has re-introduced the Responsible Fatherhood and Healthy Families Act to remove some of the government penalties on married families, crack down on men avoiding child support payments, ensure that support payments go to families instead of state bureaucracies, fund support services for fathers and their families, and support domestic violence prevention efforts. President Obama will sign this bill into law and continue to implement innovative measures to strengthen families.
• Support Parents with Young Children: Barack Obama and Joe Biden will expand programs like the successful Nurse-Family Partnership to all low-income, first-time mothers. The Nurse-Family Partnership provides home visits by trained registered nurses to low-income expectant mothers and their families. Researchers at the Federal Reserve Bank of Minneapolis concluded that these programs produced an average of five dollars in savings for every dollar invested and produced more than $28,000 in net savings for every high-risk family enrolled in the program. The Obama-Biden plan will assist approximately 570,000 first-time mothers each year.

Some family law matters relating to sexual minorities are contained on the "civil rights" page and include:

• Support Full Civil Unions and Federal Rights for LGBT Couples: President Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
• Oppose a Constitutional Ban on Same-Sex Marriage: President Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.
• Expand Adoption Rights: President Obama believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation. He thinks that a child will benefit from a healthy and loving home, whether the parents are gay or not.

RR

conference - ADOPTION

Save the Date!
Sixth Annual
Adoption Policy Conference

Friday, March 6, 2009
New York Law School
New York, New York

On Friday, March 6, 2009, the Center for Adoption Policy, New York Law School's Justice Action Center, and Harvard Law School's Child Advocacy Program will cosponsor the Sixth Annual Adoption Policy Conference, Intercountry Adoption After the Hague Conference: Crisis or Culmination. The Conference will examine the state of International Adoption to and from the United States one year after the effective date of the Hague Convention on Intercountry Adoption in the U.S. While the Conference stands alone, it builds on issues discussed at a working group session on Intercountry Adoption that was held at Harvard Law School on January 25, 2008. More information will be available at www.nyls.edu/adoption as the conference date approaches.

Florida adoption ban unconstitutional - again

Circuit Judge Cindy Lederman held Florida's bar to "homosexuals" adopting children unconstitutional.  The ban, a product of Anita Bryant's "Save Our Children" Campaign in the late 1970s, has been challenged numerous times, with trial judges finding it unconstitutional, see Family Law Professor Blog here and here.

Lederman, known for her innovative work with children (NPR profile here), held that the ban did not meet the rationality standard and granted the adoptions.   The state will reportedly appeal.

Copy of opinion, In re Gill, as pdf here.   More information on the case is available on the ACLU website here, including a link to a You Tube video.

RR