HT to Nancy Polikoff for alerting me to the following story from the News & Observer about the backlash against progressive North Carolina judges, whose willingness to grant second-parent adoptions became publicly visible in the wake of such an adoption being upheld in the Boseman case. This will be a state to watch as conservative groups seek opportunities to enact anti-gay laws.
Hundreds of gay couples in North Carolina have turned to judges in
Orange and Durham counties to give them what most courts won't: the
legal right to be a parent to their partner's child. The discreet and
little-known practice came to light this week in a state Court of
Appeals ruling on a custody battle between a biological mother and her
estranged partner, a state senator. Now that the practice has been exposed, some lawmakers and legal experts say the adoptions should stop.
The
judges who granted them say they're more confident and committed than
ever to extending parental rights to unmarried partners. "These
are nothing but good situations, nothing but harmony and hope and a
desire to care for a child," said Pat DeVine, a recently retired Orange
County District Court judge who works as a substitute judge. "It's
2009, and we have situations we didn't have 20 years ago. The polar
star is what's in the best interest of the child."...
"Everyone
wishes there's a mother and a father and a happy family, but the truth
is that our families are not like that," said Marcia Morey, Durham
County District Court judge who granted Boseman's adoption in 2005.
"Families come to us for answers, and we will give them based on the
best interest of the child."
Such adoptions became commonplace in
Durham County in 2002. Sharon Thompson, a Durham family lawyer and a
former state representative, asked her county clerk of courts and local
judges to consider what she had seen a few other states do: waiving the
requirement that a parent forfeit rights before another can adopt.
Thompson
said that citizens can waive legal rights. She argued that surrendering
legal parenthood before an adoption is a benefit and protection for the
parent who wishes to give up the child. Therefore, she argued, the
surrender is a right that can be waived.
"I certainly didn't
invent the concept," said Thompson, who has handled hundreds of these
adoptions in Durham and Orange counties. "It's not widely used, but
it's legally sound." Parents
from across the state have hired Thompson to secure a second-parent
adoption. She said that she's presented these cases in her home county
of Durham and also had success in neighboring Orange County....
"If people fault me for going to Durham County, the fault
is with counties that refuse to follow the law and deny adoptions
simply because someone is gay," she said.
Adoption law experts
say Thompson's method isn't valid. Even the Court of Appeals gently
criticized the process in its ruling this week. Cheryl Howell, a
family law expert at UNC-Chapel Hill's School of Government who trains
district court judges, said it's a mistake for judges to view the Court
of Appeals ruling as a validation of second-parent adoptions. "The statute doesn't allow for second-parent adoptions," Howell said. "I stand firm on that." ...
"The
effect of this is that adoption policy can now be set by our district
court judges," said state Rep. Paul Stam, a Wake County Republican and
a lawyer. "All people have to do now is find one district court judge
who will do what they want. That's the lowest common denominator
adoption policy."
State Sen. Jim Forrester, a Gaston County
Republican, said it might be time for legislators to explicitly tell
judges what kind of families can adopt children. Judges,
who are elected, have broad discretion to interpret and rule on laws.
This often leads to very different decisions rendered in similar cases
across the state. ...
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