Academic journal article The William and Mary Bill of Rights Journal

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

Academic journal article The William and Mary Bill of Rights Journal

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

Article excerpt


Who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under the proposals considered in this journal as to who the first (and hopefully last) legal parents will be for newborn children. Some of these proposals would potentially place droves of children in the state' s care for placement with better, more ideal parents. This paper asks who these parents should be.

We will argue that children would be best served by placement with married parents and, barring this, that they should be placed with a single parent; as a final resort, a child should be placed with an unmarried, cohabiting couple for adoption by both of them. As we have been charged to do, we have taken an exclusively childcentered approach, drawing on an enormous body of social science on family structure and child well-being. 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. So we also argue for a weak preference for a single parent over a cohabiting couple when it comes to placing children in an adoptive home.

This paper first examines the current legal climate surrounding adoption and demonstrates that the question of optimal placement is an important one, not only to the proposals considered here, but to current adoption schemes in the United States. A significant number of states bar consideration of a prospective adopter's marital or non-marital status, laws that we believe miss an important opportunity to maximize the best interests of each child being placed. Part II then demonstrates that children are significantly more likely to thrive if they are raised in a home headed by two married parents. After presenting the results of an extensive literature review, we take a critical look at the quality of these studies and the extent to which they can assist us in isolating the impact of living in a marital home on a child's well-being. These studies confirm that marriage matters to how children flourish and to the extent to which their parents are willing to invest in them; they also suggest that living in a cohabiting household is fraught with risk for children. Part ?? then proposes model legislation to institute these preferences. We endorse a strong preference that gives first consideration to married couples and a weak preference for single parents compared to cohabiting couples. Part IV considers and ultimately rejects a number of concerns that may be raised by legislating a preference for placement with married couples.


Currently, 127,000 children are adopted every year,1 a number we would expect to surge if proposals explored in this symposium are adopted and instituted. Roughly 2.5 percent of children under eighteen, or 1.6 million children, live with adoptive parents.2 78 percent of these, or 1.24 million children, are living with two married adoptive parents; 15.2 percent, or 243,000 children, live in single-mother households, while 3.2 percent, or 51,200 children, live in single-father households; and 3.6 percent, or 57,600 children, live with a single parent and the parent's live-in partner.3 Among those children adopted through foster care, one-third are adopted by a single parent.4 Additionally, single parents "[a]s a group . . . tend[] to adopt 'special needs' children who were older, minority, and/or handicapped children."5 States are entrusted with the care and safe placement of children for adoption.6 Licensing rules, regulations, and standards all emphasize that the state's paramount duty is to the child rather than to prospective parents. …

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