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| Would-be parent Kelly Gunn |
The legal issues surrounding gay couples where one has a child or adopts one continue to be litigated one case at a time. As with any couple who separate, the child becomes the battle ground, as is the case of Abush, a seven-year old Ethiopian boy.
He was adopted in 2011 by Circe Hamilton, She and Kelly Gunn, a successful business woman, began a relationship in 2004 and moved in together in 2007. They began talking about adoption that year and attended an event for would-be adoptive parents. Jane Aronson was one of the speakers. She is a pediatrician and adoptive mother who calls herself "the orphan doctor" and is a comrade-at-arms with intercountry adoption advocate and Harvard law professor Elizabeth Bartholet.*
In 2009, Hamilton, an American who was raised in England, and Gunn applied for an adoption in either Ethiopia or Nepal, Because the countries did not welcome applications from same-sex couples, Hamilton presented herself as straight and unmarried. She even invented a boyfriend. Gunn was included in the application as a roommate. Gunn and Hamilton broke up in December, 2009 and Hamilton moved to her own home in 2010.
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| Jane |
Hamilton says that Gunn lost interest in the adoption. In March of 2011, the adoption agency wrote to Hamilton about Abush, a 15-month old boy. She went to Ethiopia to meet him and his father (his mother had left the family) and again to adopt him. On the way back from Addis Ababa, she met Gunn in London who accompanied them back to New York. Gunn took no action to push for a second-parent adoption. During the next five years, Gunn spent time with Abush and he stayed overnight at her home on several occasions. In 2015, Hamilton took Abuse back to Ethiopia to visit his family. Gunn did not accompany her.
When Hamilton was about to move from New York to London with the boy in the fall of 2016, Gunn obtained a court order to prevent her from leaving while Gunn's claims of being Abush's "de-facto" parent were litigated. If Gunn prevailed, she would be a co-parent along with Hamilton, and she would have a say in Abush's education and other facets of his rearing, as well as regular mandated visits. Jane Aronson encouraged Gunn to have a legal claim in raising Abush. Her petition was denied, but she has appealed. The case is featured in a recent New Yorker article, "What Makes a Parent?"**
Other states have adopted the concept of de-facto parents sometimes called psychological parents, either by court decision as in New York, or by legislative action as in Oregon. We at FMF oppose these laws, regarding them as another attempt to diminish the value of natural parents and to dilute the meaning of parenthood. While Hamilton was not a natural parent, she did have an open adoption and she has taken Abush back to Ethiopia to visit his family.De-facto parent laws allow a biological parent to lose full parental rights--not because they consented to an adoption, or were unfit, but because someone else wanted to share parenting, and can establish some sort of claim on the child. There are two impetus for these laws: Grandparents denied access to their grandchildren by child welfare agencies or by a son or daughter-in law, and gay partners or former gay partners of the legal parent. To remedy what appeared to be an injustice both to the persons seeking parental status and the child, law makers embraced the concept of de-facto parent, a concept first advanced by child analyst Anna Freud (Sigmund's daughter), Joseph Goldstein, and Albert Solnit in 1973. These cases prove true the legal axiom that hard cases make bad laws.
De-facto parent laws allows anyone to commence an action to assert parental rights. This includes nannies, next door neighbors, step fathers, persons with a grudge against the parent. While some children may be better off when a judge grants parental rights to a legal stranger, the odds are against it. Custody fights can be harmful to children. The child may be pressed into taking sides, and the parties may be so distracted or angry that their ability to meet the child's needs may be affected. Plus, a custody battle is expensive. Money spent on lawyers, expert witnesses, court reporters and the like take away money could be spent on the child. Real parents may not have the financial resources of the party fighting for de-facto parental rights; they may litigate until the other party cannot afford to continue. Gunn, with her superior wealth, hoped to force Hamilton into agreeing to her request.
These laws allow judges to question legal (biological or adoptive) parents' decisions regarding the child. Historically, parental decisions could be overturned by a judge only if they were demonstrably harmful to the child; that is, abusive or neglectful. Hamilton made a reasoned decision to take Abush to London. She was struggling to make a living, and she believed that her son would benefit from a gentler, slower childhood in west London with access to her English relatives and the National Health Service. Her plans are on hold while Gunn's appeal wends its way through the courts. If Gunn prevails, Hamilton may never be able to take Abush to London.
Gunn could have met her need to be a mother by adopting a child from Ethiopia as Hamilton did. Even now, she could adopt an American child who needs a family. Instead, she has spent thousands of dollars to assert a claim which, if she ultimately prevails will have little value to Abush and in fact may be harmful.--jane
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*Aronson is separated from her civil partner, a woman with whom she had adopted two sons. Both Aronson and Bartholet have both been candidates for Demon in Adoption, awarded annually by Pound Puppy Legacy. Vote for Your Favorite Demon in Adoption!
**Ian Parker, "What Makes a Parent?" New Yorker, 5/22/17
ORS109.119
Joseph Goldstein, Anna Freud, and Albert Solnit, Beyond the Best Interests of the Child (1973)
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TO WATCH
The Kids Are All Right
A movie about sperm-donor children raised in a gay relationship. The father comes back into the picture, causes havoc in the relationship. Reviews on Amazon are up and down. I didn't hate it, and it ends with no clear "ending" but since the characters don't die, it's rather like life where there are rarely easy endings to stories.
This is sad. The problem is that historically that is how foster parents have been able to adopt foster children not actually available for adoption - they are the de-facto parents by dint of being paid to care for the child. Even though, if the trainers are good, the training includes the reality that these children are NOT eligible for adoption and that no foster parent should expect to be able to adopt any child in their care. The truth is, in our world of complacent acceptance and touchy feely bull... we have pretended that all things are about the child. That we should do only what is "good" for a child and failed to see that biological parents, even in some abusive homes, are better for children than ANY other person. They are less likely to murder the child, rape a child or abuse a child that belongs to them. My stepfather molested all of my mother's daughters - including the one he fathered - and justified it with "they weren't mine and they were all of breeding age." Which is the behavior that most adults have when it comes to the children of others or we would not be drooling over barely adult males and females in the media. FACT - unless it is your child - or you have actual morals - you don't see a child - you see a sensual being, at least that is what the psychology of the teenage child preference predator has taught us. Sick - yes - true - sadly - yes.
ReplyDeleteThese legal cases are intriguing, people can get into a real frenzy about child rearing. Lawmakers included.
ReplyDeleteI know the Blog isn't on IA but the idea that the PAP in this instance actually met with the Father is a troubling image to me as an adoptee. Also considering the well known abuses in Ethiopian IA it's hard to digest people having expensive technical legal battles over a child. who with better support could obviously have stayed within their family and country.
But then, adoption hasn't been about the children or their family, for a very long time.