The Essential Guide to Family & Medical Leave

chapter 5 | leave for a new child | 81
Leave for Adoption
The FMLA’s parenting leave provisions don’t protect just employees who
have biological children—an adoptive parent is also entitled to leave to spend
time with his or her new child (as with a biological newborn) or to deal with
the adoption process. Often an employee in this situation needs time off
before the adoption is finalized, for example, to attend court proceedings,
meetings with attorneys, counseling sessions, consultations with doctors,
or for other matters related to the adoption process. The FMLA allows an
employee to take this time off (provided other eligibility requirements are
also met). The employee is entitled to adoption leave whether the adoption
is conducted through a licensed placement agency, private arrangement, or
otherwise.
Lessons from the
Real World
An employee was entitled to FMLA leave when
trying to get custody of his biological daughter
in an adoption proceeding.
Dwayne Kelley worked for Crosfield Catalysts. He had raised Shaneequa
Forbes as his daughter, even though her birth certificate listed Barbara and
Michael Forbes as her parents. Kelley “had reason to believe” that the girl
was his biological daughter.
When the state child welfare department filed a court action to take
custody of Shaneequa away from him, Kelley requested time off work to
pursue custody. Crosfield denied the request based on the belief that Kelley
could not “adopt” his own child and so was not entitled to adoption leave.
Kelley took four days off anyway to appear at the custody hearing. Crosfield
fired him, and he filed a lawsuit under the FMLA.
Kelley won the lawsuit. The court of appeals agreed that Crosfield had
violated the FMLA. It determined that Kelley was entitled to take leave
in connection with an adoption, regardless of whether or not the child in
question was his biological child.
Kelley v. Crosfield Catalysts (7th Cir. 1998) 135 F.3d 1202.