More on the Marquette instructor's homosexual adoption commentary

The current legal status in Wisconsin regarding adoption and civil unions.  My comments.
Permits single GLBT individuals to petition to adopt? Yes.
Wisconsin law permits any unmarried adult or husband and wife jointly to petition to adopt. WIS. STAT. § 48.82. [Could it be this was intended for special cases, widows, single aunt/uncle adopting after both parents death. ect.]

Permits a same-sex couple to jointly petition to adopt? Unclear.
Wisconsin courts have never precisely decided the issue, though they have strongly suggested that joint adoptions by unmarried individuals are not available under the current statutes. See In re Custody of H.S.H.-K., 533 N.W.2d 419, 437 n. 41 (Wis. 1995); In Interest of Angel Lace M., 516 N.W.2d 678, 685 n. 14 (Wis. 1994).  

Permits a same-sex partner to petition to adopt partner’s adopted child? No.
Such an adoption would terminate the parental rights of the non-adopting parent. In Interest of Angel Lace M., 516 N.W.2d 678, 683 (Wis. 1994). ("Hence, we hold that . . . a minor is not eligible for adoption unless the rights of both of her parents have been terminated. Because Georgina's parental rights remain intact, Angel is not eligible to be adopted by Annette.") [This issue is what the commentary was referencing.  ]

Details: The state regulations do not address whether sexual orientation or gender identity or expression are factors in adoption decisions. WISC. ADMIN. CODE § 51.07.

Here is Wis. Stat. 48.92 that Prof. Papke is addressing.
Effect of Adoption. (1) After the order of adoption is entered the relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent thereafter exists between the adopted person and the adoptive parents. [Two single people, as homosexuals would be legally considered, cannot adopt the same child.]

(2) After the order of adoption is entered the relationship of parent and child between the adopted person and the adopted person's birth parents, unless the birth parent is the spouse of the adoptive parent, shall be completely altered and all the rights, duties and legal consequences of the relationship shall cease to exist. Notwithstanding the extinction of all parental rights under this subsection, a court may order reasonable visitation under s. 48.925.
And again, here is a part of Prof. Papke's comments:
The great problem with the statute involves same-sex couples with children.  It is increasingly common for one member of a same-sex partnership to have a child brought into the relationship from a prior opposite-sex marriage, as a result of adoption, or conceived via artificial insemination.  Call this the “pre-existing parent” in the same-sex partnership.  The pre-existing parent might want their same-sex partner to adopt any children brought into the relationship.  In such cases, the second partner might be perceived as a parent by the child or children, and the second partner might be ready and willing to adopt any child from a previous relationship.  However, if this adoption is finalized in Wisconsin, the statute operates to automatically terminate the parental rights of the pre-existing parent -– a patently unwanted result given a hope to achieve some degree of family unification through adoption.  For a judicial confirmation of the absurd result of the Wisconsin statute, see Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W. 2d 678 (1994).

What could be done to fix WIS. STA.  48.92?  A whole new statute allowing and facilitating adoption by same-sex partners would be the best solution, but one fears the state’s current hostility toward expanding gay rights would make this difficult to achieve.  Alternatively, one could change the existing statute to create an exception for same-sex partners seeking to adopt their partners’ children.  As noted above, the statute already includes a comparable exception for stepparents adopting their spouses’ children.  Stepparents, after all, would also consider it absurd if the act of adopting their stepchildren terminated the parental rights of the pre-existing parent in the relationship.
Although today there is absolutely no legal recognition of a same-sex couple as a legal entity(Gov. Doyle's domestic partnerships will likely be overruled) or their ability to adopt, Prof. Papke is advocating that this non-existent legal "right" be granted.  Although written as a "fix" to a current law, what Papke is saying is that despite the fact that traditional marriage is protected under the Wis Constitution as between one man and one woman, other laws that assume this proper role of marriage should be undermined to accommodate for two homosexuals to bring children into their union.  I don't think the "ship has sailed" on this issue, and the fact that voters passed a marriage amendments proves that the will of the people is to uphold the traditional family structure.  What is clear by the comment "one fears the state’s current hostility toward expanding gay rights would make this difficult to achieve" that this "hostility" is the law of the land.  "Hostility" is not a legal term, he is talking about a political climate.  Prof. Papke is pushing his own personal agenda here.  And he's able to do it under the guise of a Catholic legal perspective. 

1 comment:

  1. So don't forget to vote in the upcomming State Supreme Court election!


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