guest commentary by Ethan Nobles
Editor’s note: Ethan Nobles is an attorney in Benton focusing on real estate, contracts, wills, trusts, incorporations and other areas of law as the mood strikes.
Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of The City Wire.
One of the big issues in this year’s Legislative session had to do with “re-homing” of adopted children. It seems that plenty of Arkansas lawmakers decided that practice is a terrible idea.
One has to wonder why it took anyone this long to figure that out, particularly since there are a number of hoops to jump through before the state grants an adoption. It is no easy thing to adopt a child in Arkansas, so why was giving one away a fairly simple matter?
The whole re-homing issue came to light after State Rep. Justin Harris, R-West Fork, adopted two girls and then turned custody of them over to a man who allegedly assaulted one of them. In the wake of that incident, legislators started working on a law to make it a felony to transfer a child without state oversight.
That makes a lot of sense, but here’s the shocking thing – there are only five states in the nation that regulate re-homing. It is incredible that someone generally has to go through a lengthy and thorough process through the courts when trying to adopt, but an adopted child can be dumped off like an unwanted pet after the process is approved.
Here’s what I mean. I’m representing one of my in-laws in an adoption. Her husband wants to adopt her children and he has been in the picture since the kids were babies. He is, in fact, the only father they have ever known.
Because the biological dad of those children registered with the state’s putative father index, we have to make sure that man gets notice of the adoption just in case he has a good reason to try and prevent it. That is proving to be an expensive process, but deemed necessary because there is an interest in protecting the rights of that biological father although he has had absolutely nothing to do with those children since the day they were born. It is amazing that the process is so protective and thorough on one hand and then lax on the other. The prohibitions against re-homing should shore up that disparity.
So, congratulations to the Arkansas Legislature for getting busy and doing the right thing about re-homing. As of this writing, the bill is still before the Legislature but it is expected to pass.
As an aside, it would have been intriguing to watch how the courts would have dealt with the re-homing issue had the Legislature not put together a bill to deal with the issue. Quite often, courts will step in and take care of such issues if the Legislature refuses to do so. Some are quick to criticize the judicial branch’s tendency to effectively legislate from the bench, but it is important to keep one thing in mind. Legislators are swayed by lobbyists whereas judges are not (or, at least, they shouldn’t be).
There are times, then, when legislating from the bench isn’t such a bad thing.