Wednesday, April 20, 2011

New Arizona adoption statute prefers married heterosexual parents

Leave it to the Arizona legislature to enact another bad piece of legislation that reflects extreme right wing views. On Monday, Gov. Jan Brewer signed SB 1188 which creates a preference that a child be adopted by "a married man and woman." The act applies to anyone licensed to place children for adoption.

A single individual can be an adoptive parent if one of the following conditions exists: a married couple is not available; the single person is the child's legal relative; the child would otherwise be in extended foster care; there is an established "meaningful and healthy relationship" between the child and the single person; the birth parent(s) places the child with the single person; or the child's best interests require adoption by the single person.

This is different from other adoption statutes. Most statutes are silent about marital status and base adoption on a child's best interests. The Arkansas statute struck down recently (see my post here), as well as the one in place in Utah, ban adoption by a single individual living with an unmarried partner. Arizona's new statute is less restrictive than that because it is not an outright ban on such an adoption. On the other hand, with a preference for a married couple in every case, there is no telling how that will impact a lesbian or gay man -- or a single heterosexual -- seeking to adopt a child. It does suggest that if an agency has a married couple approved to adopt -- or even in the pipeline -- they must choose such a placement over anyone else. It may mean that married heterosexuals get their choice of child while an unmarried person gets the children such couples reject.

The exceptions to the married couple preference show a somewhat sophisticated understanding of the common circumstances cited by opponents of adoption restrictions, such as a birth parent's choice or a person with an established relationship with the child. And since best interests itself can be the basis for an exception, there is enough flexibility to permit placements to continue. The statute requires the judge to make written best interests findings for every adoption. It remains to be seen whether judges will require some proof of the unavailability of a married couple unless one of the enumerated exceptions other than best interests applies.

One more thing: The consistent use of "single person" in contrast to a married couple makes clear that two unmarried persons cannot adopt together. So much for the best interests of children.

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