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December 22, 2010

NC Supreme Court voids second-parent adoptions, allows custody

By Guest Blogger Nancy Polikoff

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month).

The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them.

This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son.

The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents.The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support.

These are cruel results. I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorrent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am.

There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did, someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

Crossposted from Beyond Straight and Gay Marriage

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Comments

Nancy, I share your contempt for this litigant and the many other around the country who have used the inequalities written into the law to get their way in custody disputes.

However, I think that shunning these bad actors is not a practical step, and may worsen already bad outcomes that hurt kids and their unacknowledged parents. In the similar custody disputes I'm familiar with, what happens is a dynamic in which the custodial, legal parent and the kids are being told far too often how out of line she is. She then withdraws the children from the very community that might get across this message, and may decide to move--thus disrupting any visitation the court may have ordered.

Agreed that this decision sends a chilling message to the thousands of us in states where there is no guiding ruling on the 'king's cross' strategy--but the social norms that would make this behavior unacceptable to anyone, anywhere, are not in force.

There is an opportunity here for a broader conversation, fitting in with this kind of case and with the kind that Bill Singer referred to recently, in which couples who are legally partnered somewhere forget to get divorced before remarrying. We had one in NM this year in which a reluctant spouse tried to evade divorce proceedings with the argument, We weren't really married.

The common thread is that our community at one time had the expectation that our relationships were extralegal. In those days, whatever transpired at the end of the road was in the hands of the meanest person in the room--the parents of one partner, or the wronged not-spouse, but no degree of unfairness from the party with the state's power behind him/her was likely to be remedied.

Over the last 25 years, though, we've been successful in changing statutes and bringing cases that add up to a basis in law for us to end our relationships in ways more equal to straight couples. As a result, it's more often the case that someone will go to court expecting a fair result, in line with how the family has been treated socially--and continue fighting for that expected result in the face of a ex whose use of the king's cross impacts thousands of strangers along with her intended target.

What we haven't done is the educational piece that goes along with that legal piece, which you're alluding to here. There is no shared norm about how we end our relationships and what is not acceptable, and there are many complex reasons for that. Disparities in how states treat our families is the main problem, I'd guess--although we could have an interesting argument about the role of your goal to reinvent family law, away from the norms that are familiar from our shared culture, in the form of marriage and child-rearing.

Does an evolving vision for what family law says, means and does--as you've advocated for many years-- support the formation of social expectations that condemn Melissa Boseman's actions, as we agree is appropriate? Or does the proliferation of multiple ways to be legally connected instead undercut, or cross-cut, the development of a set of norms that would place a stumbling block in front of these kinds of cases?

My guess is that we wouldn't agree as readily about that, but it would be an interesting debate. Meanwhile, what can we, in our roles as organizers and theorists, do to support a culture of respect? Respect for one another (presumably these two women didn't start their child's life from a posture of contempt for one another), respect for the other families our actions affect, and respect for the years of sacrifice that have gone toward making a place for our families in the law--all of those are vital if we want to avoid more bad outcomes like this one.

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