Attorney general: unmarried couples cannot adopt in Michigan

By D'Anne Witkowski

Originally printed 9/23/04 (Issue 1239 - Between The Lines News)

LANSING - Michigan Attorney General Mike Cox issued a legal opinion Sept. 14 which says that unmarried couples cannot adopt children together.

Jane A. Bassett, an attorney and Vice President of Coalition for Adoption Rights Equality, explained Cox's opinion. "It says that same-sex couples who marry in another jurisdiction will not have that marriage recognized in Michigan for purposes of adoption. The adoption code states that a person who petitions to adopt must be joined in that adoption by his or her spouse. The opinion would indicate that a same-sex spouse is not a legal spouse in Michigan and is therefore not required to join in the adoption. The opinion also states that the same-sex spouse is not permitted to join in the adoption because two unmarried persons cannot adopt together in Michigan."

The opinion reads, in part, "Couples of the same sex who marry in a state that recognizes same-sex marriages as valid are not legally authorized to adopt children in Michigan as a couple; one member of a same-sex couple may adopt a child in Michigan as a single person."

"We think this is an incorrect interpretation of Michigan's adoption law," said Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan's LGBT Legal Project.

According to Kaplan, Cox justified his decision via a provision in Michigan's adoption code (MCL710.24) that says if a married person wants to adopt a child their spouse must join in the adoption. Cox read that as meaning only married people could adopt as couples.

Kaplan said it is important to note the language of this provision. "This particular provision in Michigan's adoption code is very similar to language in other states (such as New Jersey, Massachusetts, New York, Delaware, Vermont)," said Kaplan. "In Michigan our higher court hasn't issued a decision interpreting this provision. In other states...their appellate courts have held...that this language doesn't mean that unmarried couples cannot adopt; they have held that this isn't a bar to second parent adoption."

What's most important, said Kaplan, is basing an adoption on what's in the best interest of a child. Of the nine factors a court is asked to look at, maritial status of the adoptive parent or parents is not explicitly listed.

The decision was requested by Sen. Bill Hardiman (R-Kentwood). According to Kelly Bartlett, Hardiman's chief of staff, Hardiman was approached by a local constituent who was concerned that same-sex couples married in Massachusetts might then be able to adopt children together in Michigan. Hardiman, an outspoken supporter of so-called traditional marriage, then took the matter to Cox.

When asked to respond to charges that the decision is anti-family, Bartlett responded, "I certainly understand and appreciate the fact that people live together and care about each other, but to have the legally recognized support, a family structure - I believe [Hardiman] believes that's properly limited to a family with a husband and wife."

Bartlett said Hardiman is not anti-gay. "He does not harbor any rancor or judgment for folks who are in that lifestyle. Having said that, for him he believes first as a matter of faith that the lifestyle is an immoral one and that's fundamental to his core beliefs," said Bartlett. "He believes that his responsibility as a legislator is to enshrine the best arrangements and public policy and that would be ones that would preserve as many rights and legal privileges for traditional families as would be."

Bartlett does not believe that the opinion will have strong negative effects for same-sex parents in Michigan. "It's not that storm troopers are going to sweep through neighborhoods and say you're in a same-sex household and even if you're legally adopted by one of your parents we're going to take you away," said Bartlett. "That's a very wrong interpretation of the decision."

Advocates of LGBT rights do not believe the opinion is benign. "I'm really glad to hear they're not going to storm troop and take away children from families who love them, but they're certainly not doing anything to protect those kids either," said Bev Davidson, president of CARE.

"Why are the children of Massachusetts afforded more rights and protections than the children of Michigan?" asked Davidson. "It seems like Attorney General Cox would want to protect the rights of all of Michigan children."

Although Cox's opinion is not binding on judges and does not have the same weight as a court ruling, it's still problematic, said Davidson. "It would have been a lot better if the AG opinion would have come out in support of second parent adoption. It certainly would have helped our cause in terms of getting a bill passed."

"The fear about this attorney general opinion is that courts that might choose to interpret Michigan adoption law to allow unmarried couples to adopt might not do so," said Kaplan, adding that the opinion impacted unmarried heterosexual couples as well.

"Clearly, given [Cox's] interpretation, it makes it even more necessary for our legislature to amend our adoption code and make it absolutely clear that unmarried couples can adopt the children they are raising," said Davidson.