Commentary

Gay Foster Parenting: Dispositive Consideration Must Remain BIC, Not Adults’ Sexual Preferences

By Lynn Wardle | December 15, 2015 | 12:42pm EST
Foster parents April Hoagland and Beckie Peirce are photographed on Wednesday, Nov. 11, 2015 in Salt Lake City. A judge who ordered that a baby be taken away from April Hoagland and Beckie Peirce, her lesbian foster parents and placed with a heterosexual couple should follow the law and not inject his personal beliefs into the matter, Utah's Republican governor said Thursday, Nov. 12. (AP Photo/Steve Griffin/The Salt Lake Tribune)

In November, a rural Utah state court judge ordered that a one-year-old child who had been living in foster care with a lesbian couple for the past three months be removed from the couple and placed with a heterosexual couple instead.  The surprise order was rendered ex parte by the court during a routine “permanency” hearing, without any motion or other request for change in the foster care arrangement. 

The incident immediately received nation-wide media publicity and resulted in an instantaneous outpouring of criticism of the Judge’s ruling. State welfare officials immediately began a review of the order. Within days, the judge rescinded his removal order and allowed the child to remain with the lesbian foster parents. 

The Utah judge explicitly based his initial order (and, presumably, his rescission order, also) on the “best interests of the child” (“BIC”) legal standard that is ubiquitously applicable to legal issues concerning the welfare and interests of children.  That standard is universally accepted as the proper legal standard by which to judge nearly all child welfare issues including foster care placement of children.  So there is no question that the judge applied the proper legal standard in making his order. 

But the “BIC” standard itself is a conundrum. The problem is that the proper “BIC” legal standard is so broad, generic and indefinite; it includes all factors possibly relevant to the welfare of the child in the legal circumstances before the court.  It is so broad and so vague that it allows room for a judge to apply his or her personal moral views to decide the outcome of the case. In the Utah case, critics complained that the judge was just applying his personal moral views against homosexual relations to influence his decision regarding the best interests of the child in need of foster care.

A related problem, is that “best” (as in “best interests of the child”) is a normative term.  It does not tell us where to look to find the moral content or standards by which to determine what is in the “best interests of the child.”  “Best” require a reference point, a source of standards.  For instance, a court may need to apply the “BIC” standard to decide whether to give custody to the father (whose parenting style emphasizes sports and developing the child’s athletic talents and social interactions) or to the mother (whose parenting style emphasizes developing the child’s musical talents and cultural sophistication).  Which is “best” for a child: sports or music? 

A third problem in the Utah case was procedural.  Usually, removal of a child in a settled, existing foster placement would occur following an objection filed by some party with an interest in the welfare of the children.  In the Utah case, however, no party or legally interested person objected to the lesbian couple continuing to have foster care. A court has the authority (and responsibility) to act sua sponte (on its own, without any motion or objection filed by anyone), to protect the best interests of children. Indeed, the judge has a duty to act in parens patriae – as if he or she (or the state) were the parent or guardian of the child. But procedurally the motion or objection of another party (such as the state’s child protection department) is preferable.

Fourth, placing the child into state institutional care rather than leaving the child in a foster home was questionable.

However, the chief concern with the Utah foster case and outcry highlights the difference between child-centric and adult-centric approaches to issues of children’s welfare.  Historically, the law gave priority to the interests of adults over the interests of children.  Perhaps ignorance of the facts and process of child development was to blame originally for the adult-centric approach taken by the law.  As Phillippe Aries explained in his classic L’enfant et la vie familiale sous l’ancien regime (English: The Child and Family Life in the Old Regime) (1960), for centuries the concept of childhood was lost; during the middle ages, children were viewed (and portrayed in art) as miniature adults. 

By the end of the nineteenth century juvenile law in America recognized that children are different than adults, and consideration of child welfare legally trumped adult preferences in cases dealing with the care and welfare of children.  Sadly, many of the criticisms of the Utah judge’s foster care order were clearly based on adult-centric perspectives. 

Today, adult sexuality legally is a matter for adult autonomous determinations.  What a man or woman does sexually with another consenting adult is largely beyond legal regulation. However, adult preference is not the standard for deciding legal issues concerning the welfare of children.  When adult behavior poses a potential threat to the welfare of children, the welfare of the child trumps and takes priority over adult preferences. 

So the question in the Utah case was whether there was any evidence before the court that the behavior of the lesbian foster parents posed a threat to the welfare of the child.  The judge, referring to his own values and experience thought that it would be better for the child to be raised by a heterosexual couple rather than a same-sex couple.

Certainly that presumption is not unreasonable. Not long ago it would have an accepted social standard.  But times have changed.  Today, evidence of a specific potential harm is needed to support that conclusion.  And record proof of harm apparently was lacking in the Utah case.

Distinguished law professor James Dwyer has recently published a short article on the internet commenting on this recent Utah foster care case. Professor Dwyer is the Arthur B. Hanson Professor of Law at the College of William and Mary.  He is a very respected family law scholar with expertise concerning children and the law.  He is the author of six books including “The Relationship Rights of Children” (Cambrindge University Press 2006) and more than a dozen law review articles focusing on children’s rights, adoption, child protection, and education. 

Professor Dwyer wisely argues that issues of foster placement should be governed by a child-centric perspective. He agrees that moral factors are not irrelevant to foster care decisions:

“[H]aving to deal with those struggles [of living in a homosexual household] on top of the very difficult struggles arising simply from being a foster child—that is, a child separated from biological parents because of maltreatment and now desperately needing permanence and peace, is a cost child-welfare agencies and judges might justifiably take into account in deciding among available foster care placements, just as a judge would consider other potential obstacles to foster children's comfort and successful integration in a community.

“A normative assumption that sexual minorities possess an equality right against consideration of their sexual orientation in connection with foster care placements would also be false. If this consideration is factually relevant to children's wellbeing, then children have a right to its being considered, and the sole proper purpose of a state choice of foster care placements is to effectuate any right of the child.”

Professor Dwyer notes that adults have the right to decline to enter into a family relationships with someone else because of their belief that it is not in their best interests, and that courts, acting for “[v]ulnerable children should possess that legal right as well.”

Certainly, the sexual environment in which a child will be raised is of legitimate concern to courts deciding on foster care, adoption, and custody issues.  The dispositive consideration must remain the best interests of the child, not the sexual preferences of adults.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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