Tuesday, December 21, 2010

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

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 abhorent 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.


Unknown said...

What a shame for all of us in NC. Yes, it would have been helpful if Jarrell had thought about her choices before she acted. And the right wing was well armed, and used us against ourselves. I hope that people like Sharon Thompson will continue to advocate, and represent our interests. We are not all like this. Melrose Haas

Unknown said...

this is why queers will never be equal in the US until all civil rights are ensconced from the federal level down. period. and this was a typical move i experienced a lot when i was a lawyer in CT back in the 80's and 90's. (in fact, the CT case for adoption was brought by my clients). unfortunately, people get crazy in "divorces" and lose sight of everything but their own stuff so while this woman's behaviour is outrageous it's not uncommon. why not use the oppression in your favour if it gets you ahead? well because it's wrong. but again, until the queer community has federal protection/rights, it's open season. makes my stomach hurt. how the other one sleeps at night is beyond me.

Bill Singer said...

Nancy is right. For her own selfish goals, Jarrell did great harm to our community and used right wing ideologues to assist her. It makes me sick

Mccannenator said...

If Boseman wanted a child perhaps she should give birth to one. You have no idea what you are talking about unless you have been a natural mother and watch some horrible human being divide your two year old son down the middle as he suffers now at 6 with oppositional defiant disorder, PREDICT and reactive attachment disorder but this woman that believes now she was never gay should have a piece of him. I carried him. I birthed him. I breastfed him for 2 years. I held him in my arms every night. She was nothing more than an occasional playmate or ex step parent at best and now a little piece of paper has transfered ownership of a human being like a car or house. It makes me sick.