Updated 5/15/24.
The state Supreme Court agreed unanimously in A.M.B. v Circuit Court of Ashland County that the unmarried partner does not have the ability to adopt the child of his long-term partner, even when a judge finds adoption is in the best interest of the child.
Justice Jill Karofsky agreed with the decision, but disagreed with the assumptions behind it, as her concurrence made clear.
Here are a few background paragraphs from Justice Rebecca Grassl Bradley's majority opinion.
A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental rights of M.M.C.'s biological father have been terminated. Based on T.G.'s fatherly bond and relationship with M.M.C., T.G. filed a joint petition with A.M.B. to adopt M.M.C.
Prior to the adoption hearing, the county department human services generated a "Home Study Report," which included a background check of T.G., a review of T.G.'s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption.
But still, the justices said: No.
"While A.M.B. and T.G. may provide a safe, stable, healthy, and loving home for M.M.C., the judiciary is powerless to craft an exception to the adoption law on a case-by-case basis," Grassl Bradley wrote.
The state has a legitimate interest in ensuring children are adopted into "'safe and stable families,'" she said, quoting state statute. She added that "a child joining a family with married parents enjoys a greater likelihood of a financially stable upbringing compared to a household with two unmarried parents."
Wisconsin divorce law include a presumption that married couples who break up do so on "financially equivalent footing. ... Nothing comparable exists for unmarried couples," Grassl Bradley said. "If an unmarried partner decides to sever the relationship, he may freely leave without an equal division of financial assets, to the financial detriment of the remaining parent and the adoptive child."
On to Karofsky's concurrence, quoted below at length while omitting citations:
I agree with the majority that A.M.B.'s constitutional challenge merits rational basis review and that the challenged adoption statutes have a rational basis under the law. Rational basis review presents a low bar for the state to clear. We need only to conceive of a single rational connection between the statutes and a legitimate state interest in order for us to uphold the statutes' constitutionality. Here it is rational for the legislature to connect marriage to relationship longevity, then relationship longevity to household stability, and finally household stability to the child's best interest.
But in this case, the logical threads begin to shred under the weight of any sincere scrutiny. ... I urge the legislature to reform the adoption restrictions so that they truly support the best interest of every child. ...
There is no doubt that it is in a child's best interest to grow up in a safe and stable household. However, conditioning adoption on the marital status of the child's parent and prospective adoptive parent reflects questionable assumptions about which types of households are stable, and which are unstable. There are many different family structures that create stability for children, and the statute's one-size-fits-all approach can actively work against the benefit of a child, as it did in this case.
Children can and do thrive in families with single, unmarried, or married parents. This case is an excellent example of the second category. T.G. has, by all accounts, demonstrated dedication and commitment to A.M.B. over the past decade, and for her part A.M.B. reports that she views T.G. as a father figure. There is no dispute that adoption would be in A.M.B.'s best interest.
Moreover, children can and do struggle in households with married parents. Married couples may, on average, stay together in the same household longer than unmarried parents, and that may look like stability from a thousand-foot-view. But inside the home, the legal pressure for a married couple to stay together, the very thing that makes the household appear stable in a superficial sense, may sometimes lead to worse outcomes for children. More than 20% of children have witnessed domestic violence within their lifetime, often resulting in long term harm to their development. Even short of domestic violence, legally "stable" marriages may be rife with stressors for the children in those homes. ...
In short, using marriage as a litmus test for household stability reflects suspect assumptions about which family structures create stability, and what it means for a household to be stable in the first place. ...
Linking the adoption statutes to the best interest of the child goal is little more than tail-wagging-the-dog circular reasoning. It goes like this: The state grants a "constellation of benefits" to married couples related to "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority," and more. The state then uses those benefits as justification to grant yet another benefit to married couples — here, adoption rights — reasoning that because married couples are already well supported by the state, they are in a better position to receive the new benefit. ... Perhaps the answer then is not to limit adoption benefits to married couples on the basis that the other benefits they receive make them "safe and stable," but for the legislature to expand support for alternative family structures, making them even more "safe and stable," and (from the state's point of view) suitable for adopting children.
A third issue is
an outdated set of values positioning marriage as the moral center of family and society. ...
To explain what is fundamentally wrong with using this set of values to justify marriage-based laws, I turn to an 1888 U.S. Supreme Court case ... that expounded on marriage as "the foundation of the family and of society, without which there would be neither civilization or progress."
At the time those words were written, the following was true about the institution of marriage. Coverture laws subordinated married women to their husbands' legal control, eliminating their legal and economic identities.
As a result, a married woman's property, earnings, and labor automatically belonged to her husband. In addition, there was no legal recourse for a married woman whose husband had sexually assaulted her, which would be true well into the 1970s in many states. And neither married women nor unmarried women had the right to vote, to exercise civic influence in order to right these wrongs. Furthermore, marriage was limited exclusively to heterosexual relationships. And, marriages between people of differing races and ethnicities were widely banned. In short, if marriage was the foundation of the family and of society in 1888, there was something rotten at the core of that foundation.
Times have changed, of course, but the justification that marriage is the moral core of society and the family is as weak as it ever was. With only about half of U.S. adults in a marriage, first marriages beginning later in life, and increasing divorce rates over time, Americans are spending more and more of their adult lives unmarried. ... Functional, stable families continue to form as alternative family structures proliferate and garner greater societal acceptance. The notion that marriage serves as the foundation of society is at best outdated, and at worst misogynistic. ...
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