Framing Adoption Policy Toward Family Restoration for Orphans

Bethany Kreitinger, Regent Law Juris Doctor Candidate for this May, 2011, has drafted an argument for Virginia’s expansion of adoption provisions to include same sex parents in a manner that focuses not on the adult, as most case law that favors homosexual parents does, but on the child, and his or her best interests in being provided a forever parent rather than state operated foster care.

 Though her view is unique at Regent, it is not unrepresentative of a segment of popular culture. Her work also showcases the diversity at Regent University School of Law in fairness and openness to progressive ideas in a context of Christian faith. Entitled, MOMMIES DEAREST: WHETHER VIRGINIA’S ADOPTION POLICY WOULD BETTER REFLECT THE BEST INTEREST OF THE CHILD, IF PETITIONERS’ SEXUAL ORIENTATION WAS IRRELEVANT, Kreitinger offers a new perspective, as she writes:

“Whether it be a boy or girl, raise up some friends for it in this troubled world; and take pity upon a lonely and desolate child, abandoned to its mercy.” At one time or another, most Americans were probably forced to read these famous words by Charles Dickens, in Oliver Twist.[1]   Yet, in American society today, what does it actually mean to “take pity” upon an orphaned child? Does it mean preventing the adoption of such a child by individuals whose sexual behavior has been deemed immoral, or does it mean overlooking such behavior in order to place the child in a home with individuals willing and able to care for him? That is the crux of the debate raging today regarding whether same-sex couples should be allowed to adopt. This article seeks to resolve that dilemma for Virginia.

Section I examines the history of adoption in America, in order to shed light on the ways in which the early views and treatment of American adoption have shaped the current best interest of the child legislation as it relates to adoption by same-sex couples. Section II then examines the best interest of the child standard as it applies to adoption and its application in today’s court discretion. Section III examines the case law in states in which adoption by same-sex couples is allowed, revealing that in such states courts seem to adopt a broader perspective of the best interest of the child standard, rather than focusing on the specific factor of the petitioners’ sexual orientation. Section IV, on the other hand, examines the case law in states in which adoption by same-sex couples is prohibited and demonstrates that in such states, adoption by same-sex couples is viewed as an endorsement by the state of conduct which it deemed as lewd or unnatural.

Section V then focuses on Virginia’s statute and case law pertaining to homosexual adoption illustrating that, though Virginia’s statute does not expressly prohibit homosexual adoption, it deems certain homosexual behavior as a crime against nature, prohibits homosexual marriage, and only permits married couples or single individuals to adopt. Thus, under Virginia statute, homosexual couples are effectively banned from adopting. On the other hand, Virginia case law reveals that the Court seems conflicted as to the significance an individual’s sexual preference should play in the overall best interest of the child analysis. Section VI focuses on the statistical data and research pertaining to the effects of adoption by same-sex couples on the child with specific regards to gender roles and sexual orientation, abuse, and harassment, and, finally, based on this data and research, Section VII examines how, by taking a moderate approach which neither endorses homosexual behavior nor impedes the placement of more children into stable permanent homes, Virginia could amend its code to better reflect the best interest of the child standard.”

Read her entire article here.

Kreitinger’s position will be contrasted with an opposing position in Thursday’s post.

[1] Dickens, Charles, Oliver Twist (1838)

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