Discrimination in Foster Care, Guardianship, and Adoption

Laws and practices governing the custody of children must give priority to keeping children with their family and kin.

Origins-USA opposes laws and practices that unnecessarily destroy connections between family members. These include laws and practices that consider irrelevant factors such as the caregiver’s sexual orientation, marital status, age, weight, physical ability, or nationality in determining child custody.

Origins-USA opposes foster care, guardianship, and adoption laws that use irrelevant factors to discriminate because they might ignore the wishes of both the original and extended families and unnecessarily separate family members. Such laws also decrease options for children and teens in foster care who cannot return to their families, and prevent GLBT youth in foster care from being placed with GLBT caregivers.

In addition, such discriminatory laws are based on the notion that only people who are the right age, the right weight, heterosexual, and married are “fit” to take care of children. They are based on the anti-family idea that it’s more important that a child be with a married, heterosexual, physically fit, financially stable couple than with his or her own flesh and blood. Origins-USA opposes any law that defines who is qualified to raise a child based on such discriminatory criteria.  

Supporting Evidence for Putting Family Preservation First, Not Bigotry

In several recent cases, laws and proposed legislation have put bigotry over keeping families together. In 2008, the Human Rights Campaign reported a sharp increase in state legislation that would prohibit or restrict the ability of gay, lesbian, bisexual, and transgender (GLBT) people to adopt children or to serve as foster parents. Often, these legislative proposals would exclude not only GLBT people, but also single and cohabitating unmarried people of all sexual orientations. For example, in 2008 the Arkansas Family Council, an affiliate of the religious right group Focus on the Family, proposed a ballot measure that would prevent a child from being placed in a foster home or adopted by anyone who was single or cohabitating with a sexual partner outside of marriage. The initiative contained no exception for relatives, meaning that a judge could send a child to be adopted by married strangers, rather than remain with the child’s own cohabitating relative.  In addition, under such laws, a lesbian whose partner gives birth to her own child would not be able to adopt her partner's child. In December 2008, a Miami-Dade Circuit Court judge found a Florida law barring adoption by homosexuals--the only such state law in the country--unconstitutional.

It is not only the GLBT community that is affected by discrimination in foster care and adoption, sometimes resulting in unnecessary separation of relatives. For example, in September 2007, Gary Stocklaufer filed an appeal to maintain custody of Max, the son of his cousin. Gary and his wife had been caring for Max at the request of Max’s mother Penny who is Gary’s cousin. Penny clearly stated that she wanted her child to be adopted by her cousin, who had been caring for the boy since he was a week old. Yet a judge denied Gary’s petition to adopt Max because Gary was overweight, resulting in Max being removed from his uncle’s home to be placed with strangers, against the wishes of his mother.  After the case received national media attention, a judge awarded Gary and his wife custody of his nephew.

In the fall of 2007, a committee of the Oregon Department of Human Services (DHS) recommended that a five year old boy whose parents’ parental rights had been terminated be placed with his paternal grandmother in Mexico pursuant to a DHS policy of giving preference to biological relatives. Because of intense opposition from the boy's foster parents, the media, and the public, the Governor appointed a mediator to review the decision. The mediator convinced the grandmother to give up her request for custody and recommended that the foster parents be allowed to adopt the boy. It is clear that the sole reason for the opposition to the grandmother and the ultimate outcome was the grandmother's nationality.

No research exists to support such laws and practices. A 2006 study by the Evan B. Donaldson Institute found “no child-centered reason to prevent gays and lesbians from becoming adoptive parents."  In addition, GLBT children and teens in foster care who require placement outside the family might benefit from placement with GLBT caregivers.

Origins-USA agrees with the literature which supports giving priority to keeping families together, based on the documented long-lasting harmful effects of separation on both mothers and their children.

Supporting Resources

James P. Gleeson, Dr. Jeanne Howard, Mirah Riben, Dr. Mark Testa, “Alternative Routes to Permanency: Is Adoption Always the Best Choice?” The Evan B. Donaldson Adoption Institute and Ethica, Inc. Adoption Ethics and Accountability Conference, October 15-16, 2007, Arlington, Virginia.

Jeanne Howard, Expanding Resources for Children: Is Adoption By Gays and Lesbians Part of the Answer for Boys and Girls Who Need Homes?  2006 March. New York: Evan B. Donaldson Adoption Institute, http://www.adoptioninstitute.org/policy/2006_Expanding_Resources_for_Children.php

Grant Slater, “Man resorts to surgery to adopt child,” USA Today, 8/25/07, http://www.usatoday.com/news/health/2007-08-24-2808744902_x.htm 

Judge Rules in Baby Max Custody Case: Stocklaufers to get custody of baby Max," KMBC Kansas City, http://www.kmbc.com/news/14994541/detail.html

"Adoption ruling is correct," News Journal editorial, http://www.pnj.com/article/20081201/OPINION/812010301

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