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Supreme Court of West Virginia Rules Against "Traditional Family" Unit in Same-Sex Adoption Case?

By Javier Lavagnino, Esq. on June 08, 2009 | Last updated on March 21, 2019

The West Virginia's high court has ruled in favor of Kathryn Kutil and Cheryl Hess, a same-sex couple, who sought to stop the state's Department of Health and Human Resources (DHHR) from removing a baby girl from their foster home. The high court ruled in the couple's favor rejecting claims that the foster child would be better placed in a "traditional" home with a prospective adoptive mother and father pair.

This case involved a baby girl who was born with traces of cocaine and oxycodone in her blood. As a result, she was taken away from her mom (the dad's identity is unknown) by the state and placed in Kutil and Hess' home. Noteably, the couple's home had been approved by the Department for both foster care and adoption, and actually was serving as a foster home to other children.

However, the baby's guardian ad litem (often a lawyer appointed by a court to determine a child's interests) disagreed with the state's placement decision. It seems that the guardian ad litem appeared to have more than just that one baby's interests in mind, considering they actually wanted an order preventing DHHR "from placing foster children in homosexual homes'" across the entire state of West Virginia. However, the courts only considered the single child in this case.

The lower court ended up agreeing with the guardian ad litem, finding that the baby should be taken out of the home and placed "in a household interested in adoption that is a 'traditional family' having a mother and a father rather than a household headed by a same sex couple or single person." The state's high court didn't see it the same way, however.

First, it noted that the issue of whether or not Kutil and Hess could actually adopt the baby was not a proper basis for the decision against them below. As an important sidenote, however, the high court did leave that question unanswered for now. The next argument was that the couple's home essentially had too many foster children under state law. Even if that were so, the high court said, the lower court ignored the baby's interests in making its decision to remove her, considering that other children were placed at the home by DHHR after her. The lower court should have considered other options, evidence, and factors in remedying the problem of having too many children in the home.

Lastly, and perhaps most noteably, the court took a dim view of the argument that state adoption statutes favor adoption by "a more traditional family unit" of a mother and father. The court essentially said the argument had no support, and that under state law there are three classes of people who can adopt: (1) an unmarried person; (2) a married couple jointly, and (3) an individual in a marriage whose spouse consents. None of those categories has any priority over the others. The decision isn't so much against the traditional family unit, but it does place it on equal footing with the other categories. 

As a result, one thing to keep an eye out for is whether West Virginia's legislature will change the law's language in light of the decision.

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