Bringing up Baby: Adoption, Marriage, and the Best Interests of the Child

In the piece, Professor Brad Wilcox and I ask who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under new definitions of legal parentage proposed in this volume of the WILLIAM & MARY BILL OF RIGHTS JOURNAL. This question is also important today for evaluating state adoption laws. A significant number of states bar consideration of a prospective adopter's marital or non-marital status. We believe these laws miss an important opportunity to maximize the best interests of each child being placed. In this piece, we take an exclusively child-centered approach, drawing on an enormous body of social science on family structure and child well-being. We begin with a critical look at the studies showing that children are significantly more likely to thrive if they are raised in a home headed by two married parents. Here, the social science is clear: on average, children do best in a married home, compared to the alternatives, and for this reason adoption laws and regulations should clearly favor married parents. The social science is less clear on the advantage that a single parent might have compared to cohabiting parents; here, we think the science suggests that a single parent might offer more stability and safety to a child than a cohabiting couple. We then propose model legislation to institute these preferences. We endorse a strong preference that gives first consideration to married couples and a weak preference to single parents compared to cohabiting couples. We also consider and reject a number of concerns that may be raised by legislating a preference for placement with married couples. We ultimately conclude that children entrusted to the State for placement are, for a time, children of the State. There is no one in whom the State has a greater interest in protecting and securing the best possible future. Placement of a child in a home with two, married parents makes it more likely that she will have a safe, affectionate, and enduring connection to two parents over the course of her lifetime, a connection that is clearly in her best interests.