Non-Exclusive Adoption and Child Welfare
This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children’s legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent-child relationships but denies foster parents the legal title of “parent,” even when they are long-term primary caretakers.
Non-exclusive adoption would respect the lived reality of many foster children by legally recognizing all parents in their lives. Biological parents, even those who cannot reunify with their children, retain an important role for many foster children. Foster parents serve as functional parents and often see themselves, and are seen by children, as parents. Moreover, creating an additional legal path for foster children to leave foster care to new permanent families may help many children and families find legal options that minimize unnecessary litigation.
Some courts and legislators have recognized multiple parenthood, especially for children conceived through assisted reproductive technology (ART) and raised by same-sex partners. Yet multiple parenthood faces a core challenge — multiplying the number of legally recognized parents can multiply legal conflicts over children. Non-exclusive adoption in child welfare has a compelling answer. Child welfare law’s experience with guardianship demonstrates that the law can effectively allocate parental authority to avoid such conflicts by granting the adoptive parent legal and primary physical custody. This experience also shows one field where multiple parenthood is less radical than it appears at first. While this result raises equality concerns in ART cases, it is appropriate in child welfare cases which, by definition, involve biological parents who have been found unfit and unable to reunify with their children.
Josh Gupta-Kagan, Non-Exclusive Adoption and Child Welfare, _ Alabama Law Review_ Forthcoming, 2014.