Two potential clients walk in your door. They introduce themselves as Steve and Frank. Steve and Frank are clean-cut, well dressed and polite. After introducing themselves, the first words out of their mouths are, "We want to adopt." You learn that Steve and Frank are a gay couple who have been together for just over a year now. They believe that they’ve been together long enough (they’re not married1 ) and they are now ready to start a "family" by adopting. Can they do this? Should they do this? This paper seeks to provide an answer to these questions, especially the second question. Put more specifically, this paper asks whether an unmarried same-sex couple should have standing to petition to jointly adopt in Illinois.2 It concludes that, despite case precedent to the contrary, unmarried same-sex couples should not have standing to jointly adopt under current Illinois Adoption law.
This paper will focus on the case In re Petition of K.M.,3 which held that unmarried, same-sex couples do have standing to petition for joint adoption under Illinois law.4 The justifications behind K.M.’s holding will be critiqued, and arguments will be provided as to why these justifications are not convincing. This paper has two sections. The first section is analytical, discussing the facts of K.M., the law undergirding its holding, and the reasoning behind the decision. The second section is argument. This section puts forth three reasons, or counter-arguments, why same-sex couples should not have standing to jointly adopt: first, principles of statutory construction demand that the Illinois Adoption Act be interpreted to restrict joint adoption to married couples only; second, the ‘best interests of the child test’ should not be used in deciding whether certain petitioners have standing to adopt because using this test disturbs the clear intent and prerogative of the legislature to decide who should have standing to adopt in Illinois; third, K.M.’s holding opens up the Adoption Act to adoptions the Illinois legislature never intended - including adoptions by three or more people, cult groups, or institutional groups. For these reasons, the better position is that unmarried, same-sex couples should not have standing to jointly adopt.
In re Petition of K.M. is actually two adoption cases that were heard together. The first case concerns a petition by K.M. and D.M., an unmarried lesbian couple, to jointly adopt K.M.’s naturally-born daughter. At the initial hearing, a guardian ad litem was appointed to represent the child’s interests in the case. Following the hearing, the guardian filed a motion to dismiss the petition, asserting that the unmarried couple did not have standing to petition to jointly adopt under the Illinois Adoption Act.5 The Circuit Court agreed with the guardian, and denied the petition. The couple appealed.
The second case is very similar to the first. In this case, an unmarried lesbian couple, K.L. and M.M., filed a joint petition to adopt K.L.’s two sons – David and Michael (David is K.L.’s natural son and Michael was adopted by K.L.) The court appointed the same guardian ad litem as in the K.M. case. The guardian also filed a motion to dismiss for lack of standing, and that motion was granted. The couple appealed.
The Appellate Court overturned the District Court’s ruling, holding that both same-sex couples have standing to petition to jointly adopt under the Illinois Adoption Act. The Court stated that "these [statutory] provisions when liberally construed accord standing to petitioners other than single persons or married couples. The circuit court erred in failing to consider them in its analysis."6 The Appellate Court supported its holding with three main assertions. First, it stated a liberal construction of the Adoption Act requires such a result. Second, the court stated it must take into account the best interests of the child when making determinations of standing. Third, the court found other state case precedent compelling. The remainder of this paper will discuss these three assertions, concluding that the K.M. holding should not be followed.
Since adoption is a creature of statute, statutory construction and interpretation are of paramount concern.7 This is especially so in the instant case because there are specific statutory sections that tell us who may adopt.8 The Illinois Adoption Act is to be liberally construed, and in fact, the Act itself tells us to do so.9 In the K.M. case, the court suggested that "a statute is liberally construed when its letter is extended to include matters within the spirit or purpose of the statute."10 Another way of saying this is that the statute should apply to more cases and more situations than it otherwise would if it were strictly construed.11
This liberal construction of the Adoption Act is vital to the court’s holding, for it concludes that a liberal construction prevents an "overly narrow" construction that "excludes all unmarried person, regardless of sex, from petitioning to adopt jointly."12 A closer look at the two statutory sections that govern standing to petition to adopt is in order. The first is as follows:
(a) A reputable person of legal age and of either sex, provided that if such person is married and has not been living separate and apart from his or her spouse for 12 months or longer, his or her spouse shall be a party to the adoption proceeding, including a husband and wife desiring to adopt a child of the other spouse, in all of which cases the adoption shall be by both spouses jointly.13
The second statutory section states that "[t]he singular includes the plural and the plural includes the singular … as the context of this Act may require."14 The K.M. court reads both of these provisions together and liberally, concluding that the word "person" includes unmarried persons and thus standing must be given to unmarried persons petitioning to adopt jointly under the Act.
Contrary to the court’s position, it is this paper’s contention that the plural interpretation of "person" should only be used when married couples are involved. The K.M. court rejects this argument, stating that the statutory section allowing for the singular to include the plural (which was added to the Adoption Act in a 1959 Amendment) would be rendered superfluous by this application. The court argues this because, prior to the 1959 amendment, the term "person" had always been given a plural construction to require married persons to jointly adopt. Thus, the court reasons, to continue to read the statute as it was read prior to the amendment would render the amendment superfluous.
This rationale by the court, however, fails to take into account that the statutory amendment applies to all instances where the word "person" is used in the Illinois Adoption Act. The fact that the amendment might make this particular statutory section superfluous does not negate the fact that it has valid applications to other sections. The court here is simply overstating its argument – the singular does not have to include the plural, only as the context may require.
The court also argues that the "related child" provision in the Adoption Act supports the proposition that unmarried couples can adopt.15 The court states,
The definition of a "related child" cited above contemplates a situation in which only one – "either" – of the adopting parents is related to the child "by blood or marriage." If only one of the adopting parents is related by blood or marriage, the second adopting parent clearly need not be so related. If, however, as the circuit court held, only married couples can adopt, then both adopting parents will always be related to the child by blood or marriage.
[T]his is the only reading of the statute that makes the use of the term "either" meaningful.16
The Court concludes that "[t]he fact that the statute provides that ‘either’ adopting parent may be related to the child by blood or marriage necessarily implies that unmarried couples can adopt…."17 However, the Court fails to account for situations where both adopting parents will not always be related to the child by blood or marriage. Take, for example, a child who is adopted by her older sister and her sister’s husband. What relation does the husband have towards the child? "Brother-in-law" does not appear on the statutory list. The husband in this case is not related by blood or marriage. Or take, for example, a child who is adopted by his older cousin and his cousin’s wife. What relation does the cousin’s wife have to the child? It is clearly not one that appears in the statutory list. The court’s statement that "both adopting parents will always be related to the child by blood or marriage" is simply not true. A more sensible interpretation of the "related child" definition section is to let the statute say what is says – either or both of the adopting parents can stand in any of the following relationships to the child by blood or marriage. Not only is this more in line with proper statutory construction, but the statute can no longer be read to implicitly approve of unmarried couples adopting.
A final argument by the court is that the Adoption Act has never explicitly indicated that "two persons of the same-sex do not have standing to petition."18 This argument is weak for three reasons. First, the argument from silence can be just as easily turned on its head: there is no express indication that two persons of the same-sex do have standing to adopt. Second, the lack of any Illinois case concerning a non-married couple seeking to adopt suggests that the Illinois legislature and Illinois courts have understood Illinois Adoption law to forbid any unmarried couple from having standing to petition to jointly adopt.19 Last, it is fairly clear that this type of express prohibition against same-sex couples adopting would not have crossed the minds of the legislature as something they would need to put in the Law for the first 100 years of the existence of the Adoption Act.
Best Interests of the Child
The K.M. court states that the ‘best interests of the child’ test mandates that the statute be given a liberal construction that will include adoption by same-sex couples.20 While it is true that the best interest of the child should be the paramount concern for proceedings under the Adoption Act,21 it is an overstatement to conclude that "[a] construction that excludes all unmarried person, regardless of sex, from petitioning to adopt jointly does not give paramount consideration to the best interests and welfare of the persons to be adopted."22 The legislature has determined that there be certain minimum statutory criteria to be met in a person seeking to adopt. Such criteria is rationally based and is assumed to protect the interests of children who are put up for adoption. An attack on the standing criteria here would be an attack on standing criteria elsewhere. For instance, it is easy to see how there could be an instance where a petitioner fails to meet other standing requirements (such as being a domiciliary of Illinois), but where it is obvious that adoption would be in the best interests of the child.23 A best interests test would usurp the legislative authority to determine who has standing to adopt and wrongly place that power within the hands of the court, to be determined on an ad hoc and case-by-case basis.
Other Case Precedent / Abuse of the Holding
The Appellate Court notes other State court cases that approve of adoptions by unmarried couples of either sex. Two points are relevant here. First, these cases are not controlling.24 Second, in the words of the dissenting judge in Adoption of Tammy, when courts make decisions of this type, they "invad[e] the prerogatives of the Legislature and giv[e] legal status to a relationship by judicial fiat that our elected representatives and the general public have, as yet, failed to endorse."25 Adoption by two or more unmarried persons needs to be a policy decision made by the representatives of the will of the people, and not through an arcane and novel interpretation of the adoption statute.
A final point this paper wishes to make is that the holding of In re Petition of K.M. extends to any group that considers itself a family. That is, any number of persons are now allowed to adopt in Illinois. This could potentially open adoption up to cult groups or institutions that consider themselves a family. While the court disregards this as a possibility because adoptions must be in the best interests of the child, it seems that this type of situation is bound to happen sooner rather than later, especially considering the modern trend in society to a more communal form of child rearing.
The current law in Illinois is that two unmarried individuals have standing to adopt. However, this paper hopes to provide solid arguments that the Adoption Act should be plainly read and that standing to adopt should only be given to couples who are married. Expanding the standing of petitioners by relying on the principal of liberal construction of the Adoption Act usurps the role of the legislature in deciding who is best suited to adopt. Should the legislature find that to exclude all unmarried persons from adoption is significantly harming the state’s parens patriae interest in protecting children, then the legislature needs to amend the Adoption Act accordingly. However, it is not the role or the function of courts to do this for them, and the Adoption Act should be read accordingly.
1 See 750 Ill. Comp. Stat. 5/212(a)(5) (2006).
2 This paper is not meant to single out unmarried same-sex couples; it is this paper’s position that all unmarried couples lack standing to jointly adopt under Illinois law.
3 274 Ill.App.3d 189, 653 N.E.2d 888 (Ill. App. 1st Dist. 1995).
4 Adoption by two people not married to each other is termed a "co-parent" adoption. Illinois Institute for Continuing Legal Education, Illinois Adoption Law § 1.25, 1-21 (2006).
5 See Adoption Act, 750 Ill. Comp. Stat. 50/2(a) (2006).
6 In re Petition of K.M., 274 Ill.App.3d 189, 202, 653 N.E.2d 888, 897 (Ill. App. 1st Dist. 1995).
7 Illinois Institute for Continuing Legal Education, Illinois Adoption Law § 1.1, 1-4(2006).
8 750 Ill. Comp. Stat. 50/2(a) (2006).
9 750 Ill. Comp. Stat. 50/20 (2006) ("This Act shall be liberally construed, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act.").
10 K.M., 274 Ill.App.3d at 195, 653 N.E.2d at 892.
12 Id. at 895, 897.
13 750 Ill. Comp. Stat. 50/2(a) (2006).
14 750 Ill. Comp. Stat. 50/1(g) (2006).
15 750 Ill. Comp. Stat. 50/1B (2006) ("‘Related child’ means a child subject to adoption where either or both of the adopting parents stands in any of the following relationships by blood or marriage….").
16K.M., 274 Ill.App.3d at 198, 653 N.E.2d at 894.
19 See Illinois Institute for Continuing Legal Education, Illinois Adoption Law § 12 (2006). See also Cowhey v. Taylor, 36 Ill. App. 3d 962, 344 N.E.2d 501 (Ill. App. 1st Dist. 1976) (petitioner alleging that since he and his former wife were not married at the time of the adoption, and therefore they could not jointly adopt).
20 See K.M., 274 Ill.App.3d at 200, 653 N.E.2d at 896.
21 750 Ill. Comp. Stat. 50/20a (2006) ("The best interests and welfare of the person to be adopted shall be of paramount consideration in the construction and interpretation of this Act.").
22 K.M., 274 Ill.App.3d at 199, 653 N.E.2d at 895; See also In re Petition of E.S., 1994 WL 157949 (Ill. Cir. 1994).
23 See, e.g., In re Custody of Cannon, 268 Ill. App. 3d 937, 645 N.E.2d 348 (Ill. App. 1st Dist. 1994) (denying standing to petitioners, even though trial court determined that awarding petitioner permanent custody would serve the best interest of the children).
24 K.M., 274 Ill.App.3d at 202, 653 N.E.2d at 897.
25 Adoption of Tammy, 416 Mass. 205, 218, 619 N.E.2d 315, 322 (Mass. 1993) (Lynch. J., dissenting).
Doug Warren is a third-year law student at Northern Illinois University College of Law. He is on Law Review and is a graduate assistant for Northern Illinois University Legal Services. He received his bachelor’s degree from Wheaton College in 2002.