Custody vs. Adoption for same sex couples
This one is a bit intricate to grasp quickly, but it seems a North Carolina court has ruled that a lesbian woman’s adoption of her ex partners biological child is null and void but at the same time he has awarded her custody along with the biological parent. The implication is that lesbians and gays and transgenders can’t legally adopt a child in North Carolina unless the biological parent relinquishes all parental rights. Interesting, no? Because if a lesbian couple are partners, obviously neither wants to relinquish parental rights, as such, rather they want to parent together. And when they divorce, both want to have parental rights.
It was a sneaky way to say that gay people are second class parents. Or, to uphold the tradition of one father one mother per child. But how is an award of custody any different from the adoption rights? In other words, awarding joint custody is the same as recognizing the parental rights of the non-biological mother. Isn’t it? Interesting case, I think. The conclusion was that a special law may have to be enacted for gays who are “second parents” – and it very well may have to be. In this scenario, the gay person who wants to adopt a partner’s child is called a “second parent.” Here’s an excerpt from the Charlotte Observer:
North Carolina’s highest court on Monday voided a state senator’s adoption of her former domestic partner’s biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.
The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell’s son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.
Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.
However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.
For such second-parent adoptions to occur by parents of the same gender – granting inheritance and other rights to the child – same-sex marriage would have to be created in North Carolina or the adoption law would have to be changed, said Michelle Connell, a Winston-Salem lawyer and chairwoman of the family law section of the North Carolina Bar Association.
Several Christian groups filed briefs arguing the adoption was illegal, while law professors and the American Civil Liberties Union urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.
Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.
“The avenue is going to have to be changing the statute,” Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage. [more]