ACLU Disagrees with Second Parent Adoption Judicial Recommendations

The Michigan Judicial Institute has just published its Adoption Benchbook, which provides recommendations to judges regarding the interpretation of adoption law.

One provision of the bench book addresses the issue of second parent adoption and recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.  Under this interpretation same-sex and unmarried couples cannot adopt children together.

The ACLU of Michigan strongly disagrees with this recommendation and believes that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue.  We believe that Michigan law permits unmarried couples to adopt children together and that this interpretation is consistent with interpretations of other state courts that have adoption laws with language similar to Michigan’s.  We are also concerned with the process that was used to arrive at this recommendation.

In July 2003 we sent a letter to all probate and family judges, articulating our criticisms of the MJI recommendations regarding second parent adoption, as well as advocating for an interpretation of Michigan’s law that permits second parent adoptions by unmarried couples.

The letter reads as follows:

July 25, 2003

Dear Judge:

You will soon be receiving a bench book published by the Michigan Judicial Institute, which provides recommendations to judges regarding the interpretation of various Michigan statutes.

The Michigan Judicial Institute (MJI) was developed by the Michigan Supreme Court in 1977 to provide judges and court personnel with the opportunity to develop and enhance their professional skills.  MJI is a training division of the State Court Administrator’s Office of the Michigan Supreme Court.

One provision of this bench book addresses the issue of second parent adoption.  The book recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.

We strongly disagree with this recommendation and believe that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue. 

Furthermore, we are concerned with the process by which this provision was written.  It is our understanding that chapters for the bench book are written in consultation with an advisory committee where members have the opportunity to comment on certain provisions and subsequent revised drafts are submitted for approval.  A final draft on second parent adoption, which had been reviewed and approved by the advisory committee, was suddenly and drastically revised, presenting a different analysis than had been agreed upon by the entire committee.   This draft was sent to one committee member with the statement that he could comment on it, but regardless of his concerns, the draft was going to the printer that day.

Second-parent adoption law and the best interests of the child

No higher court in Michigan has addressed the issue of whether the language of Michigan’s adoption code (MCL 710.24(1)) permits unmarried couples to adopt children.   Michigan’s statutory language is similar if not identical to adoption statutes in the District of Columbia, Illinois, Massachusetts, New Jersey, New York and Vermont.  Their higher courts have interpreted such statutory language as permitting second parent adoptions by unmarried couples.  See e.g., In the Matter of Jacob/In the Matter of Dana, 660 NE 2d 397 (NY 1995) (interpreting similar statutory language to permit co-parent adoption); Adoption of Children by H.N.R., 666 A 2d 535 (NJ App 1995) (same); In re M.M.D.  & B.H.M., 662 A 2d 837 (DC App 1995) (same); In re Petition of K.M. & D.M., 653 NE 2d 888 (Ill App Ct 1995)(same); Adoption of Tammy, 619 NE 2d 315 (Mass 1993)(same), Adoptions of B.L.V.B. & E.L.V.B., 628 A 2d 1271 (Vt 1993)(same).

The bench book treats this issue as if it has been ultimately decided by a higher court. Given the interpretations of other state courts of similar adoption laws, we believe that it is premature for the bench book to treat this as a settled issue. 

In fact, the chapter refers to only one Michigan case in support of its analysis, In re Adams, 189 Mich App 540(1991), and that case did not involve an adoption by unmarried partners.  In re Adams involved an adoption by two married individuals. 

However, the individuals were not married to each other; they were married to other people.  Furthermore, Adams was decided prior to the 1995 amendments to Michigan’s adoption code, which now allow for direct placement adoptions for children.  The purpose of these amendments was to increase the number of adoptive families for children remaining in Michigan’s foster care system.

“(T) He concept of the best interests of the child has long been the polar star for judicial guidance in cases involving children.”  Matter of Schejbal, 131 Mich App 833,835 (1984), citing Corrie v Corrie, 42 Mich 509 (1964).  MCL 710.46 (1)(a) requires all adoption proceedings to consider the best interests of the adoptee, which include the capacity and disposition of the adoptive parties to provide the adoptee with love, affection and guidance.  MCL 722.23. 

The analysis of second parent adoption contained in the bench book disregards these best interest standards, solely focusing on the marital status of the adoptive parents, which we believe takes the focus away from the needs of the child to be adopted.

In conclusion, we believe that the provision on second adoption that you will receive in your bench book is inaccurate.  We urge you to consider the issues raised in this letter, when reviewing the bench book provision on second parent adoption.

Sincerely

Kary L. Moss, Esquire                                                 Jay Kaplan, Staff Attorney

Executive Director                                                                    LGBT Project

Henry Grix, Esquire                                                                  Hanley Gurwin, Esquire

Deborah Labelle, Esquire                                                          Monica Linkner, Esquire

Monika Sacks, Esquire