- Introduction- Planning and Organization of the Research
The legal issue, in this case, is ‘differing laws pertaining child adoption.’
Laws pertaining child adoption are governed by many legal agencies and statutory. Most of these laws, however, differ from each other. These contentions are mainly caused by different state laws. This research paper will strive to examine the legal issue of inconsistency in the law of adoption, which leads to complexities in enforcement. For example, in America, couples interested in open adoption have to first examine the state laws. Throughout the week, I did some part of work about the police and some of their challenges. It’s an important consideration as far as law enforcement is concerned. However, it will not find much relevance with this scope of legal issue. The legislative process will find relevance with this final research paper.
To examine the legal mismatch, I will examine the law enforcement process in different states of the US and find out how they are supposed to augur. I will also examine some specific cases of child adoption that brought legal challenge, caused by differing laws.
- Commentary on defining and understanding the legal issue
The laws pertaining adoption in the US in different states was harmonized through the formation of the Uniform Adoption Act. It was adopted in 1994, August by the National Conference of Commissioners on Uniform State Laws. (Hollinger, The Uniform Adoption Act).
The NCCUSL is a nonprofit organisation having more than 300 judges, lawyers, academics and legislatures who propose laws and legislations to the state in areas about state authority. (Billimoria, 1984)I will classify it as administrative law, based on the following description of the same; an Administrative Law is a branch of law that governs the activities of administrative agencies regarding creation and operations in the government. A combination of law and legal principals governing the administration and the regulation of government agencies is the basis of administrative law, which affects both the federal and state government. (Hollinger, Adoption law and practice – Volume 1, 2000)Administrative law adjudicates on judgments of certain issues, legislates when delegated by the legislature at a required time and also the enforcement of policies to the public (Sossin, 2014).
The powers bestowed on the administration by law and no matter how broad the powers extend they are not absolute, and they can be restricted but within reason, in regards to the particular situation. (Hamburger, 2014)Natural justice that is applied when no laws are in place is the basis of administrative law, by judging on issues of unjustness, abuse of office by the government when in power and just basically fighting for the people’s rights by power. The rights of individuals in dealings with public officials set explicitly by administration laws with the liabilities. Also, this ensures accountability by the administration. (Endicott, 2015)
There are very important significant reasons as to why the administrative law is extremely important to the public and the proper functioning of the system. Without such, there would be no harmony and no law and order thus leading the administration to run arbitrarily. According to Sossin (2014), it is a universal agreement and acceptance of the fact that the court has the final say and to evaluate whether or not the authority correctly interprets a concept. The rule of law means that law is above everyone and no one is superior to it, this being the concept of which administrative laws begin. Significantly administration law is an extension of the exercise of democracy for the people to ensure to take their well-being into consideration.
Formal and informal rulemaking are the two processes used in making of an administrative rule. Under specific requirements by the statute, there is the formal rulemaking where there is the requirement of a hearing on record with evidence as in a courtroom although every state government has their way of conducting the process (Nielson, 2017). Informal on the other hand requires notice given to the public and the acceptance of their opinions on the rules 77 that is in question.
Government agencies use the informal rulemaking to make and amend laws more that they use the formal rulemaking procedure. Formal hearings are only required when the statute authorizes a new rule to be implemented therefore having it evaluated at a hearing. The hearings must be published beforehand in the federal register to notify any individuals or legal entities that the proceeding may affect (Nielson, 2017). As for the Informal rulemaking, the hearing is pretty much just the comments or rather opinions that the public offer for the presented rule. Representatives of the specific agencies preside over the hearing as in a court, the employees of the presiding agencies are allowed to issue oaths and even issue subpoenas for evidence as witnesses and even make final decisions on the rule. The final decisions are later submitted and coded by the federal code regulations making the rule official. Formal and informal rulemaking are relevant in making sure that everyone has input on the rules that govern their livelihood and the authorities that are in place.
To identify the broader theme in which the legal issue is built on, I examined the challenges facing child adaptation laws in the US.
- The relevant Law (cases, statutes, regulations)
The law legitimizes both placements for licensed public and private agencies and the direct placement (parent-initiated). With the UAA, all legal requirements are clarified for every stage of adoption. The law also provides adequate personal options that are tailor-made to meet the requirements of any parent. U.A.A, came in handy, reducing some of the great problems that are experienced in the adoption cases. It provides the following solutions:
First, it provides and allows the adoptive families and the birth families to be able to decide for themselves how to run their relationships. This will be advantageous in the sense that it will help the families handle their issues primarily within their way of consent. It reduces tensions and generates more space for the families to handle their matters. In this case, it reduces incidences that will require revisiting and consideration of the following legal options, earlier discussed.
Regarding codes, the universal law would not be necessary to observe the following description of law. For a child residing in a given state, the relationship with the living parent must have been terminated and if it is not the termination suit must accompany the adoption plea. Also, if the parent-child relationship about one parent has been terminated and the former stepparent has been in charge of the child’s needs for six months before the adoption, and the other parent has consented to the adoption.
This does not, however, mean they are immune to the law above. The universal law would limit the chances of breaking. This is because everything would have been simplified and makes it flexible.
Secondly, it improves the finality of adoptions. Since the universal law is mainly based on consent, it reduces the work and necessity of creating more laws and procedures. These laws end up being redundant and generate red tape. They also demand a lot of resources and time, since it’s normally a long process as looked at below; Legislative process refers to steps that are mandatory for a proposed bill to be enacted into law. Within the United States of America, a proposed bill must be initiated by one sponsor or co-sponsors who introduce the draft law into the floor of the house (Kunz, Schmedemann, Downs, Bateson, & Konar-Steenberg, 2016). So basically the first stage is the introduction where it’s assigned a congressional number beginning with HR for house representative or S for Senate. The bill thus becomes published in the congressional records.
The bill is then forwarded to House committee for consideration and action. In this stage the effect of the bill on the budget is analyzed and if approved proceeds to the subcommittee otherwise, the bill “has died in the committee.” The subcommittee studies the bill and where necessary solicits for a public hearing to enable interested parties to testify. Notices for the public hearing are published in the federal register. Any consideration during this markup stage requires the subcommittee to make any amendment before recommending the bill back to the full committee; otherwise, the “bill dies” if rejected.
The full committee may decide to conduct a more public hearing. If voted for at this stage it’s reported to the Congress for publication indicating its potential effect on the economy and views of the people. The bill is then presented to the floor for debate before full house or senate. The bill then proceeds to full Congress for debate in favor or against. This stage is followed by voting by contribution. Any approval at this stage is forwarded to another chamber for discussion and amendment and if approved, proceeds to a conference for ionization of congressional views (Kunz, Schmedemann, Downs, Bateson, & Konar-Steenberg, 2016). If agreed the bill is passed by Congress and is sent to the president for signing into law or veto within ten days otherwise it “dies” after ten days. The Congress may, however, override the veto by a two-third majority (Longley, 2016).
After the legislative process, some versions emerge that categories the enacted law into slip law, and session law. Slip law and session law are part of statute laws that are passed into law by a legislative assembly. The two law versions form part of the three known versions that includes coded version. The slip law thus becomes the first version of the enacted law. The slip law comprises of a single sheet or a pamphlet that is assigned a number for identification. The number known as Public Law Number has two parts where the first number displays the congressional number of either the House or Senate that passed the law. The second number shows the order of chronology of the law passed. Consider Pub. L. No. 112-25 indicates the 25th law enacted by 112th Congress. The slip laws exist in print or accessible online and are in volumes (Scott, 2016).
When slip laws are bound chronologically, they become session laws. The session laws are bound to the congressional session that takes two years and consists of two sessions. The session law compilation is done by Statute at Large at the end of the congressional session. The Statute at Large does the collection with the help of Office of the Federal Register. Any proposed amendment, presidential proclamations concurrent resolutions, ratification during the session are also contained within the Statute at Large.
- Relevant Law in other Jurisdictions
The overall law in other jurisdiction is that the UAA makes it clear, for the adoption proceedings of the federal Parental Kidnapping Prevention Act, the Interstate Compact on the Placement of Child, the 28 U.S.C.A. (Uniform Adoption Act (1994), 1994)1738A and the Uniform Child Custody Jurisdiction Act. The UAA gives a lot of attention to harmonizing the UCCJA and other Acts to cut across the different states. (Bainham, 1996) It also clarifies other foreign laws. In the earlier discussions of the week, I pointed out the following case; The Supreme Court official claimed that over 70% of world democracies had already moved to abolish the death penalty. Child Welfare Information Gateway, (2016).
This left America as one of the countries making up 22% that performed any form of executions by 2013 (SCOTUS blog). Breyer tactfully moved the focus from the penalty itself by quoting foreign laws. He rather seemed to confront the question whether foreign laws had a role in moulding American laws. Well, the American democracy has often been used as the benchmark elsewhere and to support the rationale of draft laws in foreign lands. California, (2007). That means that laws can be borrowed, either in part or entirely (Kunz, Schmedemann, Downs, Bateson, & Konar-Steenberg, 2016).
Justice Breyer drives the point home by turning to cases arising in international commerce. In such cases, the judges must harbor clear and sufficient understanding of international and foreign laws so as to be able to dispense justice sufficiently. This is where globalization proves to be vital in law; the essence of acquainting a judicial system with foreign and international laws enhanced by easier travelling of information. The UAA, therefore, proves relevant regarding foreign law. (Skaine, 2003)
Though the Universal Adoption Act provides for the uniformity of the laws, they are also limited since some states have not adopted it. However, it has created a solution to bridge the issue discussed earlier, about differing laws. In cases where laws are unclear, the UAA would come in handy to create a solution for handling adoption cases. It is of paramount important to note that the legal loopholes and present themselves could be used by law breakers as a lee way for their actions. With proper law, it will seal all the legal loopholes. Another issue to point out is the enforcement arm. Diving to the broad arena of legal processes, the police are the most disadvantaged law enforcers because of the following.
For one, they are under-equipped regarding resources. (Tedxspoken)They are poorly remunerated and some living conditions they are exposed to are horribly deplorable. Also, they are majorly affected by the problem of fatigue. In the US, it was reported that the majority of police death come through suicide. This shows the kind of stress they go through in line of duty. It would therefore be very unfair to expect much from the doctors while their living standards are deplorable. In that case, the mismatch between the legislation of laws and enforcement of the same should be sealed.
Definition of key terms:
Secondary and primary sources- primary sources are direct and first-hand evidence to certain claims or events while the secondary sources are second-hand materials or data used to create information that will produce evidence.
Case law – This refers to the law established as a result of the outcome of other former cases. (Greene, 1995)
Enacted law- it refers to the body of laws that is adopted by legislative bodies or people.
Legislative materials- it refers to the laws passed and made by parliament.
Administrative law- it refers to the law or body, which regulates the procedures and operations of government agencies.
Rules of procedure- these are rules that govern the procedure in all the criminal cases in the US.
Bainham, A. (1996). The International Survey of Family Law, 1994.
Billimoria, H. M. (1984). Child Adoption: A Study of Indian Experience. Himalaya Publishing House.
Endicott, T. (2015). Administrative Law.
Greene, B. (1995). Austin-American Stateman.
Hamburger, P. (2014). Is Administrative law unlawful?
Hollinger, J. H. (2000). Adoption law and practice – Volume 1.
Hollinger, J. H. (n.d.). The Uniform Adoption Act. Retrieved from https://www.princeton.edu/futureofchildren/publications/docs/05_03_Revisiting.pdf
Kunz, C. L., Schmedemann, D. A., Downs, M. P., Bateson, A., & Konar-Steenberg, M. (2016). The Process of Legal Research: Authorities and Options, Eighth Edition .
Longley, R. (2016). The U.S. Legislative Process: How Bills Become Laws. Retrieved January 27, 2017, from About news: http://usgovinfo.about.com/od/uscongress/a/legprocess.htm
Scott, P. (2016). First Year Legal Research Guide: Statutes and Codes. Retrieved January 27, 2017, from Loyola University Chicago: http://lawlibguides.luc.edu/c.php?g=610789&p=4239531
Skaine, R. (2003). Paternity and American Law.
Tedxspoken (Director). (n.d.). Issues in law enforcement agency [Motion Picture].
Uniform Adoption Act (1994). (1994).