That’s the issue in In re Adoption of A.M., decided yesterday by the Indiana Court of Appeals. The biological father was fine with the adoption, which terminated father’s parental rights — the plan was basically for the grandfather (on the mother’s side) to take on the father role, with the mother retaining her role as mother. Indiana law appears not to allow this; the relevant statutes provide that an adoption severs both biological parents’ parental rights, unless “the adoptive parent of a child is married to a biological parent [or previous adoptive parent] of the child.” There is no provision for a child’s parents to switch from biomom+biodad to biomom+someone who isn’t married to biomom.
But the court of appeals allowed the adoption nonetheless, because of the state’s policy of preserving families and protecting the child’s best interests:
Grandfather is the biological grandfather of A.M. We also observe that the record reveals that, while Mother and Grandfather are not living together, they live only fifteen minutes apart, and that A.M. stays overnight with Grandfather almost every weekend and that Grandfather has contact with A.M. about three or four times a week. Grandfather takes A.M. to church, dance class, and the park. Grandfather provides discipline and financial support. In summary, the record reveals that Grandfather and Mother are both acting as parents.Based upon the reasoning in [an earlier case], the idea that the best interests of the child is the primary concern in an adoption proceeding, the purposes of the adoption statutes as stated by the legislature, and the trial court’s initial determination that adoption was in the best interests of A.M., we conclude that preventing the adoption in this specific case on the basis of [the statutes I summarized above -EV] would cause an absurd result not intended by the legislature.
The dissenting judge disagreed: “The record clearly supports the conclusion that Grandfather’s adoption would be in the best interest of the child and that Grandfather is ready, willing and able to assume the responsibilities of a parent. But that is not the question presented. The proposed adoption is simply not authorized by statute and should, therefore, be disapproved.”
KenB says:
As the cliche says, hard cases make bad law. My heart goes out to the child and kudos to the grandfather for his love and shouldering of responsibility. But it sounds to me as if the dissent is the better ruling on the law.
July 22, 2010, 5:44 pmruufles says:
Okay this makes no sense. Why would he want to adopt? It’s not like the child’s an orphan. He could just help the mother raise the child like a normal grandparent.
July 22, 2010, 5:47 pmChris Travers says:
So the child’s legal parents are his biological mother and biological mother’s father?
Sounds sort of like incest….
Otherwise I’m with Ruufles. Why adopt? What’s the benefit to be gained from that?
Update: Maybe it’s a way to cut the biological father out of the loop? If he’s ok with that, who am I to object?
July 22, 2010, 6:04 pmLarryA says:
To get the father out of the picture? To have more authority to make school and other decisions? To have more legal cover when disciplining the child?
If it’s in the child’s interest, who cares?
July 22, 2010, 6:05 pmOwen H. says:
Sometimes, “It’s for the children!”, should in fact trump.
July 22, 2010, 6:08 pmmarkm says:
Ruufles: Try taking your grandkid to the emergency room sometime. Or talking to his teacher.
It’s likely that the adoption is also necessary to get the kid covered under the grandfather’s medical insurance, if he has a typical employer-provided policy. I don’t know if it will also let him claim the child deduction and tax credits, which save thousands of dollars in some tax brackets. Finally, if something happens to the mother – or if she loses the kid because of abuse (perhaps I’m reading too much between the lines here, but single mother and other family members supporting the kid is suggestive to me) – the adoption will ensure he gets the kid instead of the CPS system and foster parents.
OTOH: I’m waiting for the wild rants about activist judges. (KenB was correct but too mild.) Anyone???
July 22, 2010, 6:10 pmFub says:
Point understood. I wonder if it has to do with the requirements of some institutions these days. For one example, maybe the schools won’t allow anybody but a parent to pick up the child after school, sign the child’s report card, attend teacher conferences, etc.
July 22, 2010, 6:24 pmJohn A. Fleming says:
I see these two judges graduated from the Aunt Eller school of justice: “Fiddlesticks! Let’s not break the law, let’s just * bend * it a little.”
July 22, 2010, 6:27 pmMark Horning says:
There should be other methods available to do this other than adoption no? Limited powers of atourney for example. Further I would think that there is propbably some sort of legal way for the Grandfather to be named as a “legal guardian” short of adoption.
July 22, 2010, 6:29 pmptt says:
You’ll have to wait for a case where the grandmother adopts a child while the mother retains rights.
I can see the protest signs now: “A child deserves a mother and a grandfather!”
July 22, 2010, 6:38 pmmarkm says:
ptt: OK, you topped me.
July 22, 2010, 6:43 pmSean M. says:
What was strange to me in the opinion was n.1 where the Court observes that because no appellee’s brief is filed — the adoption was uncontested — the court applies a lower standard of review. Judging from the court’s opinion, this is Indiana practice, but my understanding is that, in federal court, where the only parties “left standing” are those opposing the decision below, the appellate court will appoint an amicus curae in support of the judgment below to serve as the appellee. I wonder why Indiana has a different rule.
July 22, 2010, 6:56 pmDuffy Pratt says:
The odd thing about this is trying to figure out who is opposing the Grandfather’s position. From the opinion, it sounds like the parties are the Grandfather and the lower court. So much for the adversary system.
On the merits, it sounds like the Court did the right thing, but that the opinion is completely unjustified.
July 22, 2010, 6:57 pmDave N. says:
Duffy,
The way I read the opinion was that the judge realized he had signed an order which he believed did not comport with Indiana law, so he withdrew that order and denied the petition for adoption.
Thus, the grandfather appealed but no one filed an appellate brief in opposition.
KenB,
I agree with your comment completely. If Indiana law needs to be changed, I suggest that the Indiana Legislature is best suited to change it.
July 22, 2010, 7:07 pmIke says:
If the people of Indiana and/or their legislature believe that “the best interest of the child (aka “It’s for the childreeen!!”)” ought to trump that statute, they would have amended the law, don’t you think? Assuming – I’ve never practiced law in Indiana – that the statute does in fact say what the poster says it says, then the adoption was contrary to those provisions. That’s what “due process of the law” is about: following the law, whether it matches our personal ideology or preferences or sentiments. The nose of that particular camel in already so far into the tent that the beast’s hindquarters can be seen; let’s not do any more of ignoring the law “because it feels right”, please.
July 22, 2010, 7:09 pmOwen H. says:
The fact that you can’t understand why they’d want to do it is really irrelevant.
July 22, 2010, 7:31 pmmarkm says:
I just realized there’s one very odd aspect about this case: there’s no opposing party. That is, I was wondering what brain-dead bureaucrat or vicious nosy parker would have filed against this adoption, but there was no one in opposition. Opening the pdf from the appeals court, there’s only one party and one lawyer. When the case was in the lower court, everyone with any stake in it agreed with the adoption. That presumably includes the CPS/social services agency and (if the procedures are anything like Michigan procedures) an attorney appointed by the court to represent the child. (A “guardian ad litem“, IIRC.) But the lower court judge went off and read the law on his own rather than relying on the opposing parties to point out any legal issues.
One of the protections against “bad laws”, or general laws that badly fit a particular case, is supposed to be the discretion of the prosecutor and other executive agencies to forgo enforcing the law. We often hear of cases where that failed, e.g. the malignant nitwit of a Georgia DA who sent a 17 year old boy to prison for getting a BJ from a 15 year old girl, or the UK authorities who charged a man who found a gun and turned it in with illegal possession. But in this case, it worked: the executive branch used their discretion wisely, and was unilaterally overruled by the district judge. So who’s the activist judge?
July 22, 2010, 7:32 pmSteve says:
Yes, of course they would have. There’s certainly no possibility that the legislature simply failed to anticipate one of the millions of possible hypothetical adoption scenarios.
July 22, 2010, 7:37 pmDave N. says:
markm,
I respectfully disagree. Many times judges will have a case where there is no opposing party (some adoptions, some divorces, most probates, etc.). The judge will examine the pleadings, petitions, and other supporting documents to ensure they are in proper form.
A judge has a sworn duty to uphold the law. He or she should not sign an order believed by that judge to be illegal. His duties in signing uncontested orders are much more than the merely ministerial.
July 22, 2010, 7:44 pmChris Travers says:
That’s pretty insightful. Also the dissent here reads like a pretty activist opinion too.
I’d add that the legislature could have amended the statute after the Indiana Supreme Court ruled that adoptions not expressly allowed were not expressly denied too.
July 22, 2010, 7:53 pmDaniel Chapman says:
From the perspective of an attorney who does not practice family law: If the law says that “an adoption terminates the parental rights of both parents” and the child was, in fact, adopted, then the mother’s parental rights were, in fact, terminated. It sounds like the problem isn’t that the adoption isn’t supported by the law… but that this isn’t really an “adoption” under Indiana law. It sounds like they’re trying to create some sort of new arrangement entirely.
Am I right?
July 22, 2010, 7:53 pmChris Travers says:
But here the trial court, despite Indiana Supreme Court holdings that the adoption laws were not to be read narrowly went ahead and read the laws narrowly anyway, along with any contrary precedent narrowly. I’m not saying it was entirely activist. Indeed the right thing to do may have been to deny and let it be appealed.
July 22, 2010, 7:55 pmDave N. says:
Which is exactly what happened.
July 22, 2010, 7:59 pmSkyler says:
“It’s likely that the adoption is also necessary to get the kid covered under the grandfather’s medical insurance, if he has a typical employer-provided policy.”
So you’re suggesting that the grandfather was using the courts to commit insurance fraud? It would seem a party was excluded after all.
July 22, 2010, 8:03 pmDave N. says:
By the way, in terms of strange adoptions, Lindsey Graham is legally his sister’s father, which I guess would make him his own step-brother (his parents died while his sister was still a minor and he legally adopted her, most likely for insurance reasons).
I point to Graham not because his adoption is unusual (though it is) but because I suspect similar reasons were at play in the grandfather in this case wanting to adopt his granddaughter.
July 22, 2010, 8:15 pmohwilleke says:
From the child’s perspective, having two parents is much better than having one parent. For example, it gives the grandparent a legal duty to support the child which a guardian would not have in the same way.
From the grandparent’s perspective, it may make it easier for the grandparent to help the child. Children are entitled to survivor’s benefits from social security t grandparent’s death, to inherit without worrying about generation skipping transfer tax, to receive health insurance benefits at a lower cost (or at all), etc.
The grandparent may also receive tax benefits (child tax credit, exemptions, etc.) from having a person recognized as a child, and will definitely have more legal authority over the upbringing of the child.
Moreover, there is no obvious reason given our larger culture of how we care for children that the bundle of rights and obligations that come with adoption must be shoehorned into a married couple with kids model.
One could also fairly reason that a case like this one is unforeseen and unprovided for, rather than being forbidden. There are lots of areas of the law that are silent about things previously believed to be impossible in the family law area, with unconventional paternity and maternity cases (e.g. post-mortem conception) being another.
July 22, 2010, 8:20 pmOrenWithAnE says:
Legislature writes a statutes that applies poorly in a particular corner case, probably one they didn’t consider. Judge see that the law was not intended to reach this particular result, rules that it doesn’t. It reads like a succinct history of the Anglo Saxon legal system to me.
To read the law here as forbidding this adoption is to credit the legislature with foresight beyond human capability.
July 22, 2010, 8:22 pmptt says:
Unprovided for, sure, unforeseen? I wouldn’t think so. Grandparents have been taking care of grandchildren for a long, long time. The legislature and society haven’t seen fit to provide this particular mechanism to deal with the issue in circumstances that do not include “bad parents”.
One of the precedents in the case involved a divorced woman with custody in a relationship with another woman. Because they could not get married, a routine termination of rights by one parent and adoption by the new spouse wasn’t possible. So the court decided “in the best interests of the child” in that case. Had Indiana allowed same-sex marriage, the analysis of the child’s best interests would not have been necessary.
They told us same-sex marriage would lead to incestuous families. Turns out, banning them does!
July 22, 2010, 8:31 pmohwilleke says:
Should we care that a judge takes a liberal view of the law in a case like this one? Whose interests are hurt?
Not the child. The child picks up someone who owes more obligations to him.
Not the mother or the grandfather. They sought this result.
Not the father. His parental rights, somehow or other, were necessarily terminated before the adoption took place.
The rights of third parties with an interest in the ruling (e.g. insurance companies) to collaterally attack the judgment are not necessarily foreclosed by this ruling, and in the case of private parties aren’t governed by full faith and credit. They weren’t a party to the action, so they may not be bound by collateral estoppel and res judicata doctrines. Third parties can also often argue that the word “adoptive parent” as defined in their particular contract or governmental program is not identical in meaning to a legal adoption decree under state law (e.g. in trusts and estates practice, it is common to narrowly define who qualifies as an adoptive child for purposes of inheritances under a will).
If no one with a material interest in the matter (i.e. standing) contests it, why should anyone else care?
Settlements of litigation routinely resolve matters in a way that it would probably have been impossible to achieve at trial under any possible set of facts. For example, in Colorado, parents are free to agree in a divorce to be legally obligated to pay for higher education for their child (and routinely do so), even though a judge couldn’t impose that condition involuntarily on either party.
Is there anything wrong about a judge accepting such a settlement if no one objects to it and all legally required parties have appeared in the case? How is this case any different?
I suspect that the Indiana AG would have had a right to intervene in the case, since a state employee (the judge) appears to have been a party to the appeal, and may very well have received notice of the case. So, who is to say that the state didn’t have an opportunity to be represented that was intentionally foregone.
July 22, 2010, 8:37 pmDave N. says:
I think it is a stretch to say the State is a party because the judge declined to sign an order. The judge was exercising judicial power. He is not a “party” under ANY definition (including “nominally a party”).
Just because a proceeding is not adversarial doesn’t mean the judge should sign any purported “order” placed in front of him for signature.
The judge has the obligation to read a proposed order and determine whether he has the legal ability to sign such an order. Since Colorado allows parties in divorce to agree to pay for their children’s higher education, there’s not a problem.
July 22, 2010, 8:57 pmmarkm says:
IIRC, in Michigan even a stepparent adoption momentarily terminates the rights of both parents. That is, when I adopted my stepdaughter, first we had to get worthless ex-hubby to sign away his rights. (Which was in his interest, since it ended the continual piling on of more unpaid child support owed, but getting a fugitive to sign legal papers is, ummm, interesting…) Then when everything was all set, we went into court, my wife gave up her parental rights, and then the judge issued a decree by which *both* of us adopted her kid.
That was over thirty years ago. I might not remember correctly, or the law might have changed since. Indiana laws might be different. But why couldn’t this procedure have been used as a workaround?
July 22, 2010, 9:16 pmDave N. says:
MarkM,
When I adopted my son in Utah (in 1988), we terminated the worthless biological father’s parental rights but my wife’s parental rights were not touched at all.
In answer to your “workaround” argument, I suspect that Indiana law allows step-parent adoptions but did not anticipate the specific scenario in this case.
July 22, 2010, 9:29 pmSteve says:
Funny definition of fraud you have. It’s not fraud if the courts say the adoption is legal.
July 22, 2010, 9:55 pmAJK says:
Yes, if only Eugene Volokh could have answered this question, preferably in one of the first two sentences of his post.
July 22, 2010, 9:58 pmRandy says:
ohw:”From the child’s perspective, having two parents is much better than having one parent.”
I agree. Not many others do, however. Some people would say it’s better that the child be raised by a single lesbian than by two married lesbians.
July 22, 2010, 11:30 pmSkyler says:
Sure, but if the insurance company isn’t a party to protect it’s legally defined interests then it would seem somewhat unfair. The legislature created a law that protected them from arbitrary additions to insured policies. Now the court has ignored legislative intent and ontheir own whim, using the good old stand by “best interests of the child” they have trampled the best interest of the insurance company.
July 22, 2010, 11:34 pmOrder of the Coif says:
The Minnesota Supreme Court does this as well.
It is based on a newly discovered canon of Equity that states: Whenever the Court determines that its policy judgment produces a result which the Court believes to be better, the Court may substitute its public policy decision for that of the elected Legislature and do the “right” thing. The rationale for this Canon is the patently obvious fact that the Legislature is composed of fools and loons berift of the socio-economic and philosophical benefits of white, protestant, liberal, upper class living (and legal education), subject to undue pressure from narrow-minded public interest groups, and too ready to compromise with those who are not politically correct thinkers.
After 40 years as a lawyer and 25 as a lobbyist, I am convinced that no human being can draft a statute that a determined Appealate Court cannot twist 30, 45, 90, 120, or even 180 degrees off of its intended meaning and effect in order to serve that Court’s SUBJECTIVE determination of “better” public policy.
The legal Aristocracy is ruling the nation.
July 22, 2010, 11:37 pmOrenWithAnE says:
What’s worse, they are utterly incapable of taking note of this decision and passing an amendment clarifying precisely their patently obvious and palpable opposition to this sort of adoption!
July 23, 2010, 2:07 amKen Arromdee says:
I think there’s a difference between not enforcing a law which says that some behavior is to be punished, and not enforcing a law which says says that the state can’t actively do or recognize something. The latter is not really “failure to enforce”. It would be like picking a president by random drawing and saying that that’s just “failure to enforce” the law which says there is supposed to be an election.
July 23, 2010, 5:39 amDavid Newton says:
Sounds like that court made the wrong ruling. There are several ways around this problem which do not involve bending an adoption statute to breaking point.
The most obvious ways are either for the adoption to proceed and for the mother to then later apply for access to the child through a separate court order or for the grandfather to apply for access to the child and for termination of the parental rights of the father. Either way could achieve substantially the same result and follow the law instead of breaking it.
July 23, 2010, 6:10 amSmooth, like a Rhapsody says:
I practice in Indiana and do not know the answer to this:
Does anyone have standing to challenge this decision?
Can the AG do it?
I think the decision is wrong, but I do not see how the mistake gets corrected (and I think that the S Ct here would overturn the decision).
July 23, 2010, 8:31 amSmooth, like a Rhapsody says:
As for the upstream comment about “nosey parkers” getting involved; I can almost guarantee that DCS (what most people call CPS) was not involved.
Also, there would have been a GAL appt’d early in the case, so his/her report would have been in front of the judge to start with.
Most likely the judge had a private conversation or went to a conference and learned something that caused him to rethink his ruling.
Also, the statute specifically allows for step-parent adoptions.
What the statute does not allow is for sham proceedings that are designed to get around insurance company requirements or inheritance statutes.
July 23, 2010, 8:53 amMaryG says:
How do government benefits work into this? Surely the grandfather qualifies for some adoption help, perhaps even a permanent guardian fee?, if the thing goes through “legally”?
Amazing how many families in the past had grandparents raise their offspring’s children with no need to involve the State, and taxpayer finances, in their blended family.
(ie/ If the grandfather dies while the child is still underage, will he then draw off his “fathers” Social Security benefits?)
July 23, 2010, 9:34 amHouston Lawyer says:
There is a practical aspect to the law as written. Under the court’s logic, the child could be adopted by all of his grandparents, and they all would be the parents. In the alternative, the father could also remain as a parent. As is pointed out in the prior comments, there are real world consequences to allowing this adoption to go through. Our laws do not contemplate such an arrangement.
The statute seems to contemplate that the adopted child will be the legal child of no more than one couple at a time.
July 23, 2010, 9:53 amPubliusFL says:
On a similar note, I wonder if anyone has ever gone to the extent of using adoption as a means to avoid the generation-skipping transfer tax. This article suggests that it’s feasible.
July 23, 2010, 9:57 amSuperSkeptic says:
Interesting point (and related to the gay-marriage statutory/definition bending). Is there anything in the court’s logic that necessarily limits the child to one father and one mother (besides ‘we’ve always interpreted it that way, why wouldn’t we?’ – obviously, that isn’t enough.)? I think it might certainly be in his/her best interest to have as many people (parents) looking over him (or potentially giving him benefits of some kind) as possible. Especially if they all live within 15 minutes or so of each other.
July 23, 2010, 10:22 amChris Travers says:
Yeah. I was wondering the same thing.
Suppose you have a man who lives with two women but none of them are married to eachother (to avoid bigamy laws). Can the three together jointly adopt a child? Why or why not? Keep in mind that the statute is ALREADY read to allow an unmarried couple to jointly adopt.
July 23, 2010, 10:58 amChris Travers says:
The only argument I can see that the trial court was right to deny is this.
The trial court is a court of one judge. This is an unopposed proceeding. If the judge gets it wrong, it can only be appealed if he gets it wrong in one specific way, i.e. to deny. Therefore if the judge is in doubt the judge should deny so that three judges can put their heads together and work out the legal details.
In short the only argument for denying is that it lets the trial judge off the hook for being wrong and allows three judges to debate this issue and hopefully come to a better view than one judge could by himself.
July 23, 2010, 11:04 amBama 1L says:
I would be astonished if no one had. Legal adoption has an ancient pedigree as an estate-planning tool; the Romans did it a great deal. Rather than just devise your property to your favorite nephew, you would adopt him through legal procedure.
Some historical context may be helpful. Something like ten percent of couples were naturally childless up to the nineteenth century. These couples adopted, often not from “distressed” pregnancies as we imagine today but from relatives and neighbors. Sometimes they followed legal procedures and sometimes they did not.
I am reminded of an incident in Laura Ingalls Wilder, The First Four Years, when a friendly and trusted neighbor offered to buy (!) one of Laura and Almanzo’s children because he and his wife could not conceive. Evidently the neighbors thought it was appropriate to ask, but Laura pretty much never spoke to them again. I have to wonder how common that type of transaction was.
Probably because there were few benefits, on the one hand, and because these sorts of informal arrangements were respected by schools, doctors, everybody in town, etc. Nowadays you need a parent or legal guardian to sign field trip forms, pick up medications, etc. “They” are not going to let you take a child from daycare just because “everybody knows” you are grandpa and raising him. So formality is required. I would say that is an indirect result of increased attention to crime against children, on the one hand, and disputes between divorced parents, on the other.
July 23, 2010, 11:05 amPLR says:
Following up on Bama1L’s post, is there any support out there for the position that adoption may be a natural right, not subject to eradication or substantial diminution by a state government?
Come on Ninth Amendment fans, this is the website where I expect to see you guys lurking.
July 23, 2010, 11:39 amTrinian says:
Adoption by Grandparents also figures in one of Jane Austen’s Novels. In her novel, Emma, Frank Churchill is the legitimate son of Mr. Weston. He was adopted by his mother’s parents and thus takes their name.
This practice of adopting an heir was one with which Jane Austen was personally familiar. Her brother, Edward, was adopted into the Knight family (distant cousins to the Austens) and took the name Edward Knight when he inherited the Knight estate.
July 23, 2010, 11:45 amAnderson says:
Sean M, I note that Miss. Takes the same approach as Indiana where the appellee files no brief. State courts hear more appeals with fewer resources.
Coif, avoidance of unthought-of or absurd results is black-letter law, and there is no area of the law less suited to hyperliteral applications of statute than family law. I will be very surprised if the IN legislature says boo about its prerogatives being abused.
July 23, 2010, 12:16 pmAnderson says:
Rather than just devise your property to your favorite nephew, you would adopt him through legal procedure.
This of course is what Julius Caesar did with Octavian, who called himself Gaius Julius Caesar after his adoptive father.
July 23, 2010, 12:20 pmThorley Winston says:
Following up on Bama1L’s post, is there any support out there for the position that adoption may be a natural right, not subject to eradication or substantial diminution by a state government?
Who would this “natural right” belong to? Are you talking about the child, only children in certain circumstances, anyone who wants to adopt a child, or only people in certain circumstances who want to adopt a child?
July 23, 2010, 12:21 pmChrisIowa says:
Brings to mind the firestorm in an Iowa case a few years ago where a judge signed a few uncontested divorce agreements. Except that one of the cases was a same sex couple married in another state that was splitting. (This was before Varnum.) The contention by the noisiest faction was that by granting a divorce he recognized the marriage.
I could see why a judge would be cautious.
July 23, 2010, 12:36 pmAnon says:
Assuming that the child’s primary residence is with the mother, and the mother does not sign a waiver, the grandparent will not receive any tax benefits. The tax benefits will continue to flow to the mother.
July 23, 2010, 12:44 pmU.Va. Grad says:
Do you have a case citation for this canon?
July 23, 2010, 12:46 pmOrenWithAnE says:
And if they say boo and amend the law, no real harm done.
July 23, 2010, 1:21 pmCarolina says:
It seems that the correct procedure under Indiana law should have been for the grandfather to adopt (terminating both mom and dad’s rights) and then for mom to adopt her own biological son back. Ridiculous, but that’s apparently what IN law required. I agree with others who think it’s inappropriate for the IN courts to re-write statutes on the fly when they don’t agree with the result.
July 23, 2010, 1:57 pmmischief says:
Huh.
it is in the child’s best interest not to be a tug-of-war between adoptive parent and natural parent. Limiting the rights of people not married to a legal parent would seem to be a reasonable way to prevent many disputes. There’s plenty enough disputes with this provision in place.
July 23, 2010, 2:03 pmPliny the Elder says:
I clerked for an Indiana Supreme Justice in the 90s and this close-enough-for-government work approach was common, particularly in family law cases in the court of appeals. The one good thing it provided was the opportunity to draft dissents (as the Supremes did not always get it “right”), some of which even saw the light of day. And no, I will not name names.
July 23, 2010, 2:25 pmDave N. says:
In the unintended consequences department, I wonder if the woman and her father (or their attorney) thought about these issues:
1) Is the grandfather now legally liable for child support? Since he is now legally the father, I think the answer is “yes.” The fact that she might not seek child support is irrelevant to whether he might be required to pay it. If she received AFDC, for example, I would bet that the State would go after him for it, even if their relationship remained friendly. If they become estranged from each other, she might seek child support on her own.
2) If the two become estranged for whatever reason in the future (not likely but certainly possible), does she realize that he could sue for primary custody? I am not saying a court would grant it, but this case has already illustrated that “best interest of the child” will trump all under Indiana law.
3) If the two become estranged, does she realize that if he does not seek physical custody, her father could still sue for visitation?
4) Does the woman now realize that under intestate succession law (assuming her father does not have a will), that her son will not take through her interests but rather have an equal claim as his “child”?
5) On a related note (and not being an expert on Indiana law, I am hypothesizing), if she has siblings, and she predeceases her father, would her son be entitled to both his share as a “child” and an additional share as the “grandchild” of a predeceased offspring, assuming her father dies intestate?
I realize some of these questions are more far-fetched than others, but I have my doubts if any of them were asked.
July 23, 2010, 2:32 pmChris Travers says:
I thought that rediculous or otherwise absurd results were to be avoided.
July 23, 2010, 3:09 pmAnderson says:
Okay, having now actually looked at the opinion, there is even less here than I thought. The IN high court had already laid down that the divestment clause was not binding in some intances — without any apparent reaction from the legislature.
And the trial court chose to disregard the high court’s logic in favor of a literal application of the statute.
Not a controversial decision. The dissent simply chooses to ignore stare decisis, despite the legislature’s having interveningly amended the statute without correcting the IN courts’ enlargement thereof.
July 23, 2010, 3:26 pmSuperSkeptic says:
Sure, just take a look at:
July 23, 2010, 3:33 pmPLR says:
It would belong to the individual seeking to adopt, assuming there are no objecting parties with competing or superior claims.
I have no position on the issue, I just thought a few of the early commentators who sided with the dissent seemed to implicitly assume that legal adoption could not possibly occur except by grace of the state legislature. Query whether the assumption is warranted.
July 23, 2010, 3:46 pmAnderson says:
PLR, I note that the Indiana courts have held “The right of adoption was unknown at common law.”
July 23, 2010, 3:50 pmOrenWithAnE says:
That’s another point against OotC’s ridiculous assertion that the court is sandbagging the legislature here.
July 23, 2010, 5:07 pmUnder-age preganancy and Advertising your unborn child for adoption. | EveryTherapist says:
[...] May Child’s Grandfather Adopt the Child, While the Child’s Mother Retains Her Parental R… (volokh.com) [...]
July 26, 2010, 1:08 pmADF Alliance Alert » IN: May child’s grandfather adopt the child, while the child’s mother retains her parental rights? says:
[...] Volokh writing at The Volokh Conspiracy: “That’s the issue in In re Adoption of A.M., decided yesterday by the Indiana Court of [...]
July 26, 2010, 2:43 pmohwilleke says:
Items 2) and 3) would be true in many cases even without an adoption. Parental custody and visitation rights are not nearly as exclusive as most people expect that they are. It isn’t uncommon for anyone with regular contact with a child in a family setting, any grandparent, and anyone who simply happens to have the child with them, in addition to parents, to have standing to be considered in a very loose best interests of the child analysis. Certainly, a legal guardian would have such standing to an extent similar to an adoptive parent.
WRT the inheritance items, (4) and (5), drafting a couple of wills is a simple solution. People who hire a lawyer to do this work and appeal it are probably going to draft wills as well.
WRT to child support item (1), I would be very surprised if it was considered, and indeed, that is one of the good reasons from a best interests of the child perspective, to adopt.
July 26, 2010, 5:30 pmI WISH YOU HELD MY HAND « CRY ME AN ONION says:
[...] May Child’s Grandfather Adopt the Child, While the Child’s Mother Retains Her Parental R… (volokh.com) [...]
August 20, 2010, 4:39 pm