Protecting Children in Nontraditional Families: Second Parent Adoptions in Washington

• Publication year: 1989
• Citation: Vol. 13 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 2WINTER 1990

COMMENT

Protecting Children in Nontraditional Families: Second Parent Adoptions in Washington(fn*)

I. Introduction

Most adults take for granted their right, through marriage and adoption, to legally protect their relationship with children. A substantial segment of adults, however, cannot take this right for granted. In some states these individuals are denied the right to have a legal relationship with their partners' children because they are lesbians.(fn1)

This proscription denies children whose parents are in a committed lesbian relationship the same legal and psychological protections found in legally recognized families. Yet, all children, regardless of their parents' sexual orientation, have a need for stability and predictability.(fn2) Children already living in a household with two established parental figures-one natural, the other nonbirth-have an interest in securing the same rights other children are afforded, namely: inheritance rights; child support, if the parents separate; benefits accruing from social security, pension plans, and health insurance; and continuity of relationship with both parents.(fn3)

The rights and needs of children in these nontraditional families could be recognized through second parent adoptions.(fn4) In essence, a second parent adoption is the adoption of a child by the partner of the child's natural or legal parent. For example, suppose a lesbian couple, Emily and Lynn, decide to have a child. Emily conceives the child through artificial insemination. Lynn, the nonbirth parent, then petitions the court to adopt Emily's child and the court grants this adoption without terminating Emily's parental rights. The child then has two legal parents through the second parent adoption process.

In 1988 and 1989, three Washington courts joined the courts of three other states in granting second parent adoptions.(fn5) This Comment examines the issue of second parent adoptions in Washington and concludes that they do not contravene established legal principles. First, Part A describes the second parent adoptions granted in Washington and other states. Part A also shows that second parent adoptions are legally necessary. Second, Part B examines the Washington adoption statute(fn6) and determines that it is permissive of second parent adoptions. Finally, Part C evaluates whether second parent adoptions satisfy the legislative requirement of providing for the best interests of the child.(fn7) This Comment concludes that, all other variables being equal,(fn8) second parent adoptions do not contravene the legislative intent.

To avoid the difficulties and issues involved with the existence of a known other legal parent, this Comment presumes that the natural mother is unmarried and was artificially inseminated by an unknown donor.(fn9) This Comment also presumes that the petition for adoption is not for a joint adoption, but it is a petition for adoption of a child already living in the particular household. Additionally, this Comment refers almost exclusively to lesbian mothers, but the same analysis should apply to situations involving gay fathers as well as unmarried heterosexual parents.

A. Second Parent Adoptions Have Been Granted in Washington and Other States

Second parent adoptions resemble stepparent adoptions, with the exception of the element of marriage.(fn10) They are most applicable to situations in which the adults, desiring to share parenting responsibilities, are unwilling or unable to marry.(fn11)

In stepparent adoptions, the rights of the natural custodial parent are not terminated; the natural custodial parent merely consents to the adoption by his or her spouse. A stepparent adoption, however, does terminate the legal relationship between the non-custodial natural parent and the child. In Washington(fn12) and in other states, the general rule is that natural non-custodial parental rights are terminated when an adoption is granted; however, when a stepparent adopts the child of his or her spouse an exception to this rule applies and the rights of the natural custodial parent remain intact.(fn13)

Second parent adoptions, like stepparent adoptions, do not require the natural mother to relinquish her parental rights and responsibilities; rather, they permit the nonbirth parent to assume parental rights and responsibilities in conjunction with the natural parent.(fn14) Thus, through second parent adoption, it is possible for a child and a lesbian nonbirth parent to obtain the protection of a relationship sanctioned by the law if the nonbirth parent is permitted to adopt the child through a second parent adoption.(fn15) In addition to providing children with basic economic protection, allowing a nonbirth parent to adopt ensures that the adoptive parent has the authority to deal with schools, doctors, and other agencies.(fn16) Furthermore, the rights of both the nonbirth parent and the child would be protected in the event the relationship between the nonbirth parent and the natural parent dissolved.(fn17)

Gradually, several states-Alaska, California, Oregon, and Washington-have begun to permit second parent adoptions using the same principles and legal processes involved in stepparent adoptions.(fn18) The Washington courts have authorized three second parent adoptions.(fn19) In In re the Interest ofE.B.G., the natural and nonbirth parents were successful in their efforts to obtain approval of a second parent adoption despite opposition by the guardian ad litem.(fn20)

In Alaska, a superior court judge granted a second parent adoption by a lesbian mother's partner.(fn21) The parental rights of the natural mother were not severed and the mother's lesbian partner was permitted to be a legally-recognized second parent.(fn22) In Oregon, a natural mother, who gave birth after being artificially inseminated, and her partner desired to have the child adopted by the nonbirth parent.(fn23) The child had been parented by both adults since birth.(fn24) The Oregon court permitted the adoption without severing the natural mother's rights and responsibilities.(fn25) California has also permitted four second parent adoptions, two by lesbian partners(fn26) and two by unmarried heterosexual partners.(fn27)

In each of the states that have granted second parent adoptions, the paramount factor underlying the decisions has been the same as in all adoption cases: the best interests of the child.(fn28) However, adoptions are a creature of statute, not common law. If a court determines that the statute is not permissive of second parent adoptions, then it is unnecessary to reach a consideration of the best interests of the child standard.(fn29) Once it is determined that the statute is permissive of second parent adoptions, the courts have discretionary power to grant the adoption if it is in the child's best interests. It is the thesis of this Comment that second parent adoptions can be granted by all Washington courts reviewing such petitions.

1. Second Parent Adoptions Are Legally Necessary

A question which must be addressed before evaluating the Washington adoption statute and the best interests of the child standard is whether there is an alternative to adoption. In the final analysis, adoption is the only real means to protect the legal rights of both the child and the nonbirth parent.(fn30) Other forms of protection such as legal wills, guardianship status, and custody do not offer the same legal protections.

If a natural parent makes a legal will, and names the nonbirth parent as the person she desires to parent her child upon her death, the will could be contested.(fn31) For example, the natural parent's free will may be found invalid upon a showing of undue influence, thereby defeating the appointment of a testamentary guardian.(fn32) If the nonbirth parent died testate leaving property to the child, the nonbirth parent's heirs could also attempt to invalidate her legal will by showing undue influence.(fn33) If the nonbirth parent died intestate, the * child would not be considered "issue" for purposes of distribution under the Washington descent and distribution statute.(fn34)

The natural parent could identify the nonbirth parent as a testamentary guardian before she dies.(fn35) However, guardianship status is controlled by the court and may be denied or terminated at any time.(fn36) Appointment as a guardian also does not confer the right to custody of a child.(fn37)

Finally, if the natural parent and the nonbirth parent decide to separate, there is no established right for the nonbirth parent to have custody or visitation privileges.(fn38) By statute, Washington permits "nonparents" to petition for child custody.(fn39) However, the standard for defeating a natural parents' rights in a custody battle is very high.(fn40)

The limitations of legal wills, guardianship, and custody suggest that the only method for completely protecting the relationship between a child and its nonbirth parent is for the Washington courts to permit second parent adoptions.

B. Second Parent Adoptions Are Authorized by Washington's Adoption Statute

Thus far, this Comment has demonstrated that second parent adoptions are similar to stepparent adoptions, and that they are legally necessary to protect a child's relationship with his or her nonbirth...