Topeka ? Last year, Jerrad Webb wanted to adopt his wife Kimberly’s two children from a former marriage. He soon found the law doesn’t allow a judge to consider what’s in the best interest of the children.

Webb, an insurance agent from Deerfield, asked a magistrate judge to let him become the legal father of the 7-year-old boy and 5-year-old girl. The only problem, he discovered, was that the children’s father – his wife’s ex-husband – put up a fuss, even though he was in prison.

“He fought it; we went to court, and I lost,” Webb told the Senate Judiciary Committee on Thursday. “To me, that seemed ludicrous. If something happens to my wife, what happens to the kids? I have no say-so. The kids would be hung out to dry.”

The committee is considering a House-passed bill allowing a judge to consider the child’s best interest in private adoption cases, including those involving a stepparent and non-consenting parent.

Wichita attorney Rachael Pirner, who specializes in adoption cases, told the committee that state appellate court decisions bar judges from considering what’s in the best interest of the child because it’s not mentioned in state law on private adoptions, which can take place between individuals or involve an agency.

“The best interest of the child isn’t there in the law, so we can’t consider it in adoption proceedings,” Pirner said. “Most people assume it’s already in the law.”

However, when the state gets involved, usually to terminate parental rights in cases where children have been abused or neglected, the law says a judge can consider a child’s best interest.

Last year, 2,016 adoption proceedings were started in Kansas, compared with 1,946 in 2004 and 1,990 in 2003, Pirner said.

Considering a child’s best interest is a broad legal concept that can take into account where a child will live, who will care for the child and where the child’s quality of life will be best.

Pirner said in many private adoption cases, birth parents sign away any future claims. But, she added, sometimes the father might contest the adoption – which Webb said happened in his case.

In such cases, a court looks at a list of factors, including whether the father has made any reasonable effort to support or communicate with the child.

Webb said because the father of his wife’s children is in prison, he’s exempt from having to contribute financial support and the judge in his case decided that sending a couple of cards to the children met the requirement to communicate with them. Webb asked to adopt the children in October and was turned down in December.

Earlier this week, Webb said, a district court judge overturned that decision, but he expects the father will appeal that ruling.