Legal Commentary

May Child?s Grandfather Adopt the Child, While the Child?s Mother Retains Her Parental Rights?

By Eugene Volokh

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.?

Full post as published by The Volokh Conspiracy on July 22, 2010 (boomark / email).