Harsh North Carolina Ruling on Parentage Rights

The North Carolina Supreme Court this week issued a decisive ruling in the contested issue of second parent adoptions — most of which have been obtained by lesbian couples. The court ruled that no such procedures are available legally in North Carolina, and thus the court has invalidated all of the many second-parent adoptions by same-sex couples that were previously approved by trial courts iin that state.

What is particularly painful about this decision is that it is the result of an angry co-parent fighting against her lesbian former partner – and not arising out of a lawsuit brought by straight homophobes. Even more ironic is that the loser in this case is an out lesbian state senator.

As has been the case in about half the states in this country, when a lesbian has a child by artificial reproductive methods (i.e. sperm donor), typically she is the sole legal parent, and the donor is not a legal parent. If she has a partner and they are living in a state that recognizes marriage or domestic partnership, usually they are both legal parents because of the presumptions of parentage. But if they live in a state doesn’t recognize same-sex marriage or other form of legal partnership, the legal procedure for adding her partner as a parent is called a second-parent adoption. Unlike a conventional adoption where one parent is giving up rights to an adoptive parent, in this instance the legal parent does not give up parentage, but rather, a second legal parent is added.

Some states expressly disallow such adoptions, some states expressly allow them, but many (such as North Carolina) haven’t had clear rules. Some local judges granted them, even in the absence of a clear ruling by the legislature or appellate courts — and that is what happened here.

This process has great benefits for the child and the parents — it provides certainty in case of a break-up, and it also provides for Social Security and other benefits for the child from the second parent, and puts the second parent clearly on the hook for child support if there is a dissolution. It’s also the right thing to do.

Many of those kids have been living with their two parents for more than a decade, with everyone believing that the legal status of the parent-child relationship was not in question.

Most state courts facing the same question have approved second-parent adoptions, and in the few states where courts have ruled otherwise (Connecticut and Colorado, for example), the state legislatures quickly fixed the problem by passing new laws authorizing this procedure. However, most observers believe that is not likely to happen, especially because the newly elected members of the legislature of North Carolina are especially conservative.

Thankfully the justices ruled that the non-legal parent in this case (and presumably others like her) would have a right to seek reasonable visitation and even shared custody of her child in the event of a break-up, on the grounds that this would be in the best interest of the child. Thus, the second mom won’t lose her entire relationship with her child. But still, this decision could lead in other instances to a denial of custody and visitation, and it definitely would lead to a loss of other public and private benefits, even after the child is an adult. It also might enable a non-legal parent to escape having to pay child support obligations.

One of the most difficult aspects of this history is that it penalizes those who took a chance, and went to the trouble to obtain a legal judgment that they all felt was fair, permanent and meaningful. Now, a few justices have overturned those rulings.

Now isn’t this the worst example of judicial activism?

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