Adoption and parental status for same-sex couples

July 5, 2012

Last month, a civil liberties group joined same-sex parents in challenging North Carolina’s prohibition against “second-parent adoption.”  You can find the complaint at 2012 WL 2135593.  State law permits a married couple to jointly adopt a child, an individual to adopt a child, and a spouse to adopt the child of another spouse.  But  an unmarried partner may not adopt his/her partner’s children as a second parent.  And like many states, North Carolina does not recognize marriages between same-sex couples.  See N.C.G.S.A. Art XIV s 6.

This suit follows the decision of the North Carolina Supreme Court in Boseman v. Jarrell, 704 S.E.2d 494, holding that an adoption decree was void as not authorized by statute where the adoption purported to add a second parent who was not the spouse of the child’s legal parent.  However, the Boseman court further held that the non-legal parent was still able to petition the court for custody where the legal/biological parent acted “inconsistently with his or her paramount parental status.”

The Boseman case highlights the role of the court as problem-solver in these complex cases.  In other jurisdictions, various doctrines have developed to resolve issues of child custody and visitation where a former partner has a “parent-like relationship” with a child, is a “de facto parent,” stands in loco parentis, or similar concepts.  See “Child custody and visitation rights arising from same-sex relationship,” 80 A.L.R.5th 1, or try searching on WestlawNext for “same-sex parents” custody.  These doctrines have been developed and adapted to deal with a variety of non-traditional family relationships or other scenarios not anticipated by the legislature.

Meanwhile, some other states have allowed second-parent adoptions, and many states allow for same-sex couples to adopt jointly.  See “Adoption of Child by Same-Sex Partners,” 61 A.L.R.6th 1.  As has been the case with marriage, some same-sex couples have traveled to other states in order to adopt children … and as in the case of marriage, crossing jurisdictional lines carries its own pitfalls.  In Adar v. Smith, 639 F.3d 146, a same-sex couple adopted a Louisiana-born child in an adoption proceeding in New York, and the Louisiana State Registrar refused to issue an amended birth certificate reflecting the adoptive parents.  The 5th Circuit Court of Appeal found that the Registrar’s refusal did not deny the adoptive parents full faith and credit of the New York adoption order, and that the Louisiana adoption law that did not permit unmarried couples to obtain revised birth certificates did not violate the equal protection clause.