Wednesday, January 5, 2011

Adoption Statues: In Derogation of Common Law

The relationship between adoption and visitation

by merlin on January 4th, 2011

Because of its relatively unexplored nature, and the primal and raw issues of human nature that it implicates, adoption law holds special appeal.  It is to be distinguished from the principles of child custody that arise in the context of divorce and marital relations, and is governed by its own rules. 

 These are not necessarily rules of “common sense”, though they do follow a logical order.  Rather, these are rules that are crafted to deal with a unique set of problems that have arisen in the modern context, but are not creatures of common law.  Being in derogation of common law,* they must be “strictly construed” – what this means in a legal setting is that the specific wording of the statutes governs, and no more can be “read into it”.  If the statutory scheme doesn’t provide for it – even if every person involved is in favor of the result (something I have dealt with personally before), it simply cannot be done, no matter how much the result sought might gibe with notions of “fair play”.

In Georgia, the primary case directly addressing the relationship between a grant of visitation with a minor following the adoption of the minor by another party is Heard v. Coleman, 181 Ga.App. 899 (Ga. Ct. App. 1987).  That case, like the situation which currently occupies my attention, involved a grant by a court (located in Pennsylvania) of a right of visitation prior to entry (by a Georgia Court) of an Order of Adoption.  In that case, the stepfather of the child was the one who obtained the Order of Adoption, and the grandparents were the ones seeking to preserve their visitation with the child.  The situation I am exploring involves an adoption by grandparents and visitation by a third party, but it involves many similar principles.

The primary idea that applies to properly govern this situation is a statement drawn from Hede v. Gilstrap, 107 P.3d 158 (Sup. Ct. Wyo. 2005), a case decided by the Wyoming Supreme Court that was almost dead-on, involving a declaratory judgment sought by the paternal grandparents that their visitation order, obtained prior to the adoption of the child by the maternal grandparents, survived the adoption.  This is the central issue, it seems, in the case at bar – does a visitation order that specifically grants rights to a party with a close involvement with a child survive a subsequent grant of adoption, and therefore parental rights and privileges, to grandparents?  More specifically, if the adoption was granted without that party’s direct participation and involvement, and there are many good arguments that support the idea that the person being involved in the child’s life on an ongoing basis is in the best interests of the child, does that trump the rights and powers of the post-adoption parent?  This case, as well as the idea that the rules governing adoption are in derogation of common law and must therefore be strictly construed, argue against that idea.  The law places the best interests of the child above all other considerations in an adoption setting, but even that idea is hobbled if the goal the party seeks simply isn’t there to seek.

In the Hede case mentioned above, after the analysis of the adoption and grandparent visitation statutes (similar under the Pennsylvania scheme to the ones used by Georgia, although possible more comprehensive in their scope), and the application of the common law versus fairness standards described, the Court addressed an interesting argument that I hadn’t previously considered, analyzing whether the right of visitation was a Constitutionally-protected liberty interest that couldn’t be taken away absent notice and an opportunity to be heard.  I am somewhat embarrassed by my failure to think of this argument, since I am exploring a parallel argument in a visitation matter, but this analysis shed light on the machinations of that one.  What I find most interesting in its analysis is a statement of the Court – “public policy requires recognition that an adoption decree creates a set of new relationships with the adoptive parents and that old ties must be broken.”**  Browning v. Tarwater, 215 Kann. 501 (1974).  The Court found that the entitlement claimed by a set of granparents – blood relatives of the child – wasn’t an entitlement to visitation itself, but only to seek visitation.  However, under the adoption laws, the effect of adoption is to sever both the “incipient right to visitation and any visitation rights already established by court order”.  Hede at 172.

From Heard, the most pertinent statement arises at the end of the majority decision, “[w]e recognize, of course, the heartache inherent in this case.  After all, the child is not an infant.  She is ten years old and, presumably, she and her grandmother have established a loving relationship.  We are duty bound, however, to give effect to the sound policy expressed by the legislature…[t]he adoptive relationship must be preserved, protected and fostered even if, as it sometimes happens, a former relationship suffers.”  Heard at 901.

* Derogation is the partial repeal or abrogation of a law by a later act that limits its scope or impairs its utility and force. For example, statutes in derogation of common law are those statutes which effect a change in the common law. Common law is the system of deciding cases that originated in England and which was later adopted in the U.S.. Common law is based on precedent (legal principles developed in earlier case law) instead of statutory laws. It is the traditional law of an area or region created by judges when deciding individual disputes or cases. Common law changes over time.

The general rule of statutory construction is that statutes enacted in derogation of common law are to be strictly (narrowly) interpreted. However, some statutes are enacted and specifically provide that this principle of strict interpretation doesn’t apply.

It also means depreciation in value or estimation or deviation from a standard or expectation. For example, derogation of family values has increased the crime rate. It can also mean detraction, prejudice, or destruction.

**  So, how does this effect open adoption contact/visitation agreements? I have long argued that open adoption contact/visitation agreements are unenforceable when the adoption begins with the termination or relinquishment of ALL rights. This simply validates that and seems to add additional grounds for the breaking of such agreements.

It also all goes to prove that much about adoption makes no sense and is NOT in the best interest of children!  It is about OWNERSHIP!! 


Anonymous said...

You have made edits to my post that seem to make certain positions and comments seem as though I made them - here, I'm speaking about the tying of open adoptions and the serverance of visitation rights being a matter of ownership. I don't necessarily agree with that!

Mirah Riben said...

Au contraire. I did NOT edit your words, assuming you, anonymous are Merlin, the author of the quoted piece. I quoted you verbatim and added a commentary.

And it's not that you do not disagree with my conclusion, but rather don't "necessarily" agree. So, perhaps we could discuss our differences.

In re-reading my comment, I would agree it is a bit broad brush. Not all severances of visitations are based *solely* on ownership. Many have what are believed by the adoptive parent rational, logical roots. Many even claim - and believe - they are protecting the child from harm of some sort by terminating visitation.

But it is their right to do so for any whim - or if they never intended to keep the promises of openness. It is their right because open adoption contact agreements are no more than promises made between unequals: those who have sole parental rights, and those who have none. Far different from post-divorce visitation rights in which parents maintain their parental rights.

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