SCOW to consider adoption rights of unmarried couples

By Gretchen Schuldt

A dispute over the right of an unmarried couple to adopt a child is at the center of the first case the state Supreme Court will hear in September.

Most of the case, which bypassed the Court of Appeals, is confidential. But one document, a reply brief filed by attorneys representing the unmarried couple, is available. It names as a defendant Ashland County Circuit Judge Kelly J. McKnight, who rejected an unmarried couple's request to adopt a child. The couple, referred to as A.M.B. and T.G. in the brief, are appealing.

McKnight, wrote the couple's lawyers, John R. Carlson and Carla J. Smith, "chooses to focus first and foremost on 'protecting marriage' – an institution in which the child does not even participate."

The judge "obfuscates the core intent and interest of the legislature – the best interest of the child."  

McKnight, who as a judge is a state official, is represented by Assistant Attorney General Lynn K. Lodahl.

"The Legislature makes its intent clear in the first few sentences of Chapter 48 (the Children's Code) – 'the best interests of the child or unborn child shall always be of paramount consideration," the lawyers wrote, emphasizing the key words. "A sentence with no ​qualifications, conditions, or exceptions." 

The law identifies the secondary, qualified goal of preserving the unity of the family "whenever appropriate," they said. "And the word 'traditional' never appears anywhere in the legislative intent section." 

M.M.C., as the child is called in the brief, never had a relationship with her biological father and his parental rights were terminated. There is no ability to preserve the unity of M.M.C.'s family, Carlson and Smith said.

"The legislative intent of 'preserving the unity of the family' should not be mistaken for what the Court tried to do – force two unwilling participants into a marital contract – an event that was not centered on the child or her best interest, but focused solely on a technicality that would have no effect on M.M.C.’s day-to-day life," they said.

McKnight "determined that the best interest of the child was wholly irrelevant in determining whether to approve an adoption," they said.

The law specifically allows "an unmarried person" to adopt, they said.

"If the legislature were seeking to 'promote marriage, stability for children and families…[and] protect the traditional unitary family,' it does not make sense the legislature would explicitly permit unmarried individuals to adopt under Wisconsin law," they wrote.

Oral arguments in the case are scheduled for 9:45 a.m. Sept. 11.