Thursday, December 23, 2010

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.


suburban dyke said...

I live in NJ and we have a civil union. Prior to that, I had to get a second parent adoption. My blood ran cold reading your post. It's horrifying to think that one's child could no longer legally be one's child. I am stunned.

Nancy Polikoff said...

We are all stunned.

Christina said...

This is a horrifying situation for parents. As a heterosexual parent I want to do whatever I can to help people facing this situation of having their legal rights voided. What can be done to organize against this ruling? Charlotte, NC is going to be the site of the Democratic National Convention. The nations' eyes will be on us. How can we use this to our benefit to help parents regain their rights. When any parents split up they need to ask themselves: Which is stronger, the love I have for my chid, or the animosity I have for my former spouse?" Studies show that the younger generation does not hold the same sterotypical beliefs regarding sexuality compared compared to past generations. What can we do to respond with effect?

Unknown said...

My partner just gave birth to our son, and some of her family members are skeptical of him being my child since i am not his birth mother. He was born in North Carolina but i planned to move them to another state is there a way i could possibly get joint custody of him in another state or because he was born in NC we have to abide by there rules? This makes me very upset as i was happy to get the papers ready to get rights over him.

Unknown said...

This makes me very sad and upset. My partner and I have recently discussed having children but I am nervous if I will be the one not giving birth and not having any legal rights. It breaks my heart knowing that we are so close in other states to freedom but in NC and in my home it is only a dream. We have to keep on fighting