U of Ideas of General Interest -- February 2000
University of Illinois at Urbana-Champaign
Contact: Mark Reutter, Business & Law Editor (217) 333-0568; [email protected]
LAW:
Child-adoption laws shortchange long-term caregivers, scholar says
CHAMPAIGN, Ill. -- Compromises sometimes work and sometimes don't. In the realm of child-adoption laws, a compromise crafted by Illinois to deal with court challenges by biological fathers has contributed to a "legal limbo" where the child loses, a University of Illinois professor of law says.
In response to a case involving Richard, a 4-year-old wrenched from the home of his caregivers by a father he never knew, the General Assembly passed a law in 1995 allowing courts to award long-term custodial rights to prospective parents when the biological father succeeds in blocking adoption.
"While a decided improvement over the alternative of a traumatic change in custody," David D. Meyer wrote in the Arizona Law Review, the statute fell "significantly short of the goal of maximizing the child's welfare." Such an arrangement also left the caregivers in a state of "parental purgatory" where they were "something more than temporary custodians, but something less than true parents." Similar problems were found in other state adoption laws.
The prospect of losing custody of a child -- or coming under repeated legal challenges by a late-appearing biological father -- has led many couples to refuse to adopt U.S. children and to look overseas. (A biological mother generally surrenders her parental rights when she puts a child up for adoption.)
When a biological father contests an adoption, two options are available: Return the child to the custody of the biological father (as the Illinois Supreme Court did in the so-called Baby Richard case) or leave the child in the custody of the non-parents, but without any prospect of adoption.
Meyer advocates a third option: Make the caregivers true parents through a "non-exclusive adoption" approved by the courts. In this model, the adoptive parents would have full status and decision-making authority over the child, but the biological father would retain the right of visitation and communication with the child.
Non-exclusive adoption "would remove the nagging sense of vulnerability and impermanence that characterize many guardianship arrangements," Meyer argued. It also would get around many thorny issues regarding the father's constitutional rights to due process.
In Stanley vs. Illinois, the U. S. Supreme Court ruled in 1972 that Illinois authorities could not summarily take custody of three children just because the biological father was not married to the mother. Since then, judges nationwide have given greater latitude to biological fathers deemed of good moral character who wished to develop a relationship with their offspring.
However, Meyer wrote, the high court has not dealt squarely with the legal and social ramifications of so-called "faultless fathers" who are largely or completely unknown to their children when they seek custody.
-mr-
RSS