by Meg York , Esq .
THE CHILDREN ’ S CORNER
Progressive Stagnation : How Vermont ’ s Laws Provide Uncertainty for Children of Same-Sex Couples
Introduction
Vermont is failing children of queer parents . Once leading the nation , Vermont has now fallen behind in terms of protecting children of same-sex relationships . Because the state of the law is lagging , Vermont has lost touch with its own tradition of expanding rights for Vermonters and protecting the welfare of all Vermont children . Existing parentage laws have left a huge gap , thereby failing to meet the needs of same-sex couples and their children .
Before describing in detail the nature of the problem and the effect of the gap , it should be noted that progress is being made . In response to the precarious and unnecessarily complicated means by which legal parentage must currently be established by same-sex couples , and after Justice Dooley testified to the matter before the legislature , Governor Phil Scott signed H . 502 ( Act 31 ) on May 10 , 2017-- an Act relating to modernizing Vermont ’ s parentage laws .
As stated in the “ Findings and Intent ” of the statute : Current Vermont law provides detailed guidance as to the legal and physical rights and responsibilities of parents , with respect to their biological children or step-children , if they marry and divorce . However , the statutory law has not kept pace with the changing nature of today ’ s families , and guidance is significantly lacking with respect to unmarried parents or persons who have acted as parents , especially with respect to children who have been conceived through assisted reproductive technology . Through this act , the General Assembly seeks to assemble attorneys with particular expertise in these matters , who can examine parentage laws in other jurisdictions and develop a proposal for the General Assembly to consider during the 2018 legislative session that integrates with our existing laws best practices for providing for the best interest of the child in various types of parentage proceedings .
Through this Act , the General Assembly “ seeks to assemble attorneys and members with particular expertise in these matters , who can examine parentage laws in other jurisdictions and develop a proposal for the General Assembly to consider during the 2018 legislative session that integrates with our existing laws best practices for providing for the best interests of the child in various types of parentage proceedings .” Hopefully , the issues outlined below will be fully addressed by the study committee .
The History of Second Parent Adoption
The welfare and protection of children of same-sex relationships depends largely on whether their parents legally adopt them . This is true regardless of whether the child shares no biological relation to either parent or when the child is biologically connected to only one parent . Second parent adoptions are the standard mechanism through which queer-identified non-biological parents secure legal rights to their children , and children to their parents .
Adoption generally creates a legal mechanism for adults who are unrelated to a child to take permanent legal custody of that child . With a decree of adoption , the adoptive parent and the adoptee have the legal relation of parent and child and have all the rights and duties of that relationship including but not limited to the right of inheritance and succession from or through each other and the kindred of the adoptive parent . 1 Adoption traditionally severs the legal connection between the child and each of the biological parents . 2
Where a stepparent wants to adopt the child of his or her spouse , the provision that requires termination of legal rights between the child and both biological parents does not make sense . For this reason , the legislature created a separate mechanism for stepparent adoption , which is outlined in Article 4 of Title 15A of the Vermont Statutes . Under that statute , an adoption by a stepparent does not affect the legal relationship between the adoptee and the adoptee ’ s parent ( who would be the adoptive stepparent ’ s spouse or deceased spouse .) 3
In 1993 , Vermont Courts were presented with a new issue : a lesbian wanted to adopt the child of her partner . 4 At that time , there was no mechanism for this because the only way to adopt a child without terminating the legal rights of the involved biological parent was through stepparent adoption . This family could not pursue a stepparent adoption because they were not legally married to each other and , at the time of this case , it was impossible for them to wed . The court realized this statutory shortcoming and decided to look beyond the arguably clear language of the stepparent adoption statute to its underlying intent . The court concluded that “ the intent of the legislature was to protect the security of family units by defining the legal rights and responsibilities of children who find themselves in circumstances that do not include two biological parents .” 5 The court granted the adoption .
In 1996 , the legislature confirmed the above-referenced holding in the new Adoption Act , 15A V . S . A . §§ 1-101 — 8-101 , providing that “ if a family unit consists of a parent and the parent ’ s partner and adoption is in the best interest of the child , the partner of a parent may adopt a child of the parent ” without terminating the involved biological parent ’ s parental rights . In so doing , the legislature removed the requirement for a prospective adoptive parent as being either a spouse or stepparent to the child ; rather , the Act focused on the prospective parent ’ s role as “ partner ” to the parent as well as the best interests of the child . However , while the legislature modified the language of 15A V . S . A . § 1-102 ( b ), it did not create a new Article under which these “ partner ” or second parent adoptions could proceed .
Because the intention of a second parent adoption is not to terminate the parental rights and responsibilities of one of the partners , courts have chosen to proceed with these adoptions by utilizing the framework designed for stepparent adoptions . That same-sex couples may now marry under Vermont law has stalled the legislature from making meaningful change to the adoption requirements . However , as many queer-identified families know , a second parent adoption differs greatly from a standard stepparent adoption .
For queer families , adoption is not a rearranging of the parental relationships to the child . Most second parent adoption petitioners have been and will always be the intended parents of their children , and many sperm donors have never assumed the role of parent to their children . By con-
32 THE VERMONT BAR JOURNAL • WINTER 2017 www . vtbar . org