The State of Michigan doesn’t think that the federal courts should be allowed to compel them to accept second-parent adoption applications from unmarried individuals, but attorney Dana M. Nessel disagrees.
“The State Defendants insist the law can only be changed by the state legislature, and that the federal courts ought to play no part in mandating that gays and lesbians and their children be permitted basic civil rights enjoyed by the rest of Michigan’s population,” said Nessel. “Of course we would love to see the legislature take the initiative on this matter, and legislatively create equal rights for all Michigan’s citizens. However, the Michigan legislature, time and again, seems determine to ensure that this will never occur. And when a specific population is denied basic civil rights, the federal courts have an obligation to step in. It’s simply not up to the state legislature to decide who among us is entitled to our Constitutional rights and who is not. The legislature doesn’t get a vote on that.
“When the state legislature in Alabama denied black children the same educational opportunities afforded to white children in the 1960’s, the proper remedy was not to beg the state legislature to change their minds about the issue. It was the federal courts that mandated that all children be treated equally. What we are asking now, in Michigan in 2012 is really no different.”
That’s why she and fellow attorney Carole M. Stanyar are representing a lesbian Hazel Park couple in a case against the State of Michigan to compel them to allow unmarried individuals to jointly adopt children.
The Michigan Department of Attorney General filed a motion to have the case dismissed, claiming that no injury has occurred, that adoption laws “are uniquely within the province of the state,” and “Michigan has a rational basis for its long-standing adoption system which seeks to ensure predictability and supports the state’s overall policy of recognizing of the importance of the traditional family.”
Under Michigan law, children can only be adopted by married couples or single individuals. Many gay couples have children that are only legally adopted by one parent. The law also affects families where multiple people care for a child, such as two aunts, or an unmarried heterosexual couple.
This is problematic because only the parent on the adoption paperwork has parental rights. If something happens to the legal parent, that child then goes into the system, not necessarily to the person who has loved and raised them. The child also would not qualify for health benefits of the legally unrecognized parent, and their rights to inheritance are non-existent. The unrecognized parent has no rights with regard to their child’s education and medical needs.
Inequities hit home
April DeBoer and her partner Jayne Rowse have been together for ten years, and have lived together for six. Rowse is the legal parent of 3-year-old N and 2-year-old J. DeBoer is the legal parent of 2-year-old R. Each of the children was taken in by DeBoer and Rowse after being abandoned or surrendered at birth by their mothers. The women served as guardians and licensed foster parents to the children before adopting them as individuals. Each child could only legally be adopted by one of the women.
The couple contacted Nessel to have guardianship paperwork drawn up, when they decided it was time to stand up for stronger protections for families.
DeBoer remembered when the weight of the inequities really hit home. “The night before Jayne adopted N, I spent two hours crying because I knew I wouldn’t have rights any more. It should have been a happy night,” she said. “We both had rights as foster parents, but on the day of adoption I lost all of that. I cannot be the one to take him to the hospital because I have no right to make medical decision. I might not be allowed to pull him out of school in an emergency. If anything happens to Jayne he could be taken away, not only from me, but he and his brother can be taken away from their sister – the sister they’ve known all their lives.”
The case is being heard by Federal Court East District by Hon. Bernard A. Friedman. “I hope Judge Friedman does the right thing and recognizes the importance of protecting all families. The State Defendants believe only the children of so-called ‘traditional families’ are deserving of rights and protections. We want the law to recognize that all children are equally important,” said Nessel.
“The case rests on the U.S. Constitution and the 14h Amendment and the assertion that ‘All men are created equal,'” said Nessel.
“Things are not equal when this family has to live in fear over rights that other families take for granted,” Nessel said. “Michigan adoption law is unequal and irrational. The laws that pertain to children ought to be about what is in the best interest of the children, no matter what type of family those children belong to.”
Along with statements from the mothers, Nessel and Stanyar have filed affidavits from experts about the need for second parent adoption in Michigan, and the benefits that two-parent adoptions have for children.
“There is a crisis surrounding the adoption in Michigan,” said Kathi Nelson, M.S.W., L.M.S.W. of Hands Across The Water, Adoption & Social Services in Ann Arbor, in her affidavit. “All agencies are in desperate need of placing children of suitable families for foster care and adoption. In 2010 there were 16,406 children, aged 0-17, in foster care. These children need and deserve to be placed with families who will love and care for them, regardless of the sexual orientation of their perspective parents.”
Best interests of the children
Jeanne A Howard, Ph.D , who is co-director for the Center for Adoption Studies at Illinois State University, points out in her affidavit that, “Most states either explicitly allow joint or second parent adoption by same-sex couples through law or policy (18 states and the District of Columbia), have allowed it at the trial court level (12 states) or do not speak to the issue,” and that, “It is clearly in the best interest of children to have both parents legally recognized. Second-parent and joint adoptions protect children by giving children the legal and psychological security of having two legal parents.
“Many of these protections are financial: automatically establishing rights to inheritance, Social Security benefits, retirement benefits, health insurance coverage, and protection from wrongful death of both parents. In addition, joint or second-parent adoption enables both parents to make medical, educational and other legal decisions for the child. In the worst case, in the absence of second-parent or joint adoption, a child who loses his legal parent to death, incapacitation or even incarceration could lose his relationship with his second parent. Even when parents make accommodation through guardianship arrangements, courts are not required to approve this arrangement and are open to challenge from other relatives of the legal parent.
“Children are also at risk should their parents relationship end. Adopted children typically have legal protection to their relationship to each parent when their parents divorce and courts typically support visitation and on-going parental financial support. Children who cannot be adopted by both parents lack such protections.”
The family has started a website to help them raise awareness of their case and to get donations to help with legal expenses. Find out more at http://deboerrowseadoptionfund.nesselandkessellaw.com.