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

Post by Nancy Polikoff – Beyond Gay and Straight Marriage – December 21, 2010

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.

in Adoption / Legal  by Anthony Brown 0 comments

Florida Won’t Appeal Ruling That Found Gay Adoption Ban Unconstitutional

By Carlos Santoscoy – On Top Magazine
Published: October 13, 2010
The Florida Department of Children and Families (DCF) announced Tuesday evening that it would not appeal a court ruling that found the state’s gay adoption ban unconstitutional, CNN reported.

Last month, a 3-judge appeals court unanimously upheld a lower court’s ruling that found the law to be unconstitutional and to have “no rational basis.”

“We had weighed an appeal to the Florida Supreme Court to achieve an ultimate certainty and finality for all parties,” DCF spokesman Joe Follick told CNN. “But the depth, clarity and unanimity of the DCA opinion – and that of Miami-Dade Judge Cindy Lederman’s original circuit court decision – has made it evident that an appeal would have a less than limited chance of a different outcome.”

Attorney General Bill McCollum has yet to announce whether his department will appeal the ruling.

The decision means that Frank Martin Gill, the plaintiff being represented by the American Civil Liberties Union (ACLU), can legally adopt the two half brothers he and his partner have raised since 2004.

“We are happy to hear that DCF wants to bring this case to an end and allow the Gill family to get on with their lives,” Howard Simon, executive director of the ACLU of Florida, said in a statement.

“What is needed now is a similar statement from Florida Attorney General Bill McCollum that will formally end this case and allow judges to decide – on a case-by-case basis – what is in the best interests of children.”

“Ending this case here will mean that gay people throughout the State of Florida can apply to adopt and will be treated like everyone else,” Simon added. “This means that more children will have the opportunity to have a permanent home with a loving family.”

Florida enacted the ban 17 years ago. It is the only state with an outright ban. Other states have enacted laws that limit gay couples’ access to adoption. Such as Arkansas, which denies unmarried couples – in a state that bans gay marriage – the right to jointly adopt children.

in Adoption / In the News  by Anthony Brown 0 comments

Appeals Court Upholds Ruling Declaring Florida’s Ban on Gay Adoption Unconstitutional

Towleroad.com – September 22, 2010 – In November, 2008, Judge Cindy Lederman ruled that Florida’s ban on gay adoption is unconstitutional. The ruling allowed Frank Martin Gill to move forward with adopting two brothers, ages 4 and 8, who had been in Gill’s foster care since 2004.

In the 53-page 2008 ruling, Lederman wrote: “It is clear that sexual orientation is not a predictor of a person’s ability to parent.”

The state of Florida appealed the ruling, and today a Miami appeals court ruled against the state:

“The 3rd District Court of Appeal issued its decision Wednesday affirming a lower court’s decision that the ban is unconstitutional. Florida is the only state with a law flatly banning gays from adopting children without exception. Gays can be foster parents in Florida. A Miami-Dade County judge ruled the gay adoption ban unconstitutional in 2008, but the state appealed. The case will ultimately go to the state Supreme Court. Martin Gill and his male partner, along with the American Civil Liberties Union, filed the lawsuit in their attempt to adopt two brothers, whom they have cared for as foster children since December 2004.”

This is the case for which discredited “ex-gay” fraud George “rentboy” Rekers was paid $120,000 to serve as an “expert” witness for the state.

Last week, Florida Governor Charlie Crist said he was considering dropping this specific case:

in Adoption / In the News  by Anthony Brown 0 comments

New Law Allows For Unmarried Partners To Adopt

New York 1 – September 21, 2010

Unmarried partners, including gay couples, are now free to jointly adopt a child in New York State.

Governor David Paterson signed a law making the change on Sunday.

The law also puts “married couple” in the adoption statute, in place of what used to read “husband and wife.”

Bill sponsors say that is meant to ensure children get insurance and other benefits from both adults, as well as lifelong support even if couples split up.

Same-sex marriage is not legal in New York, but the state does recognize same-sex marriages from other states.

in Adoption / In the News  by Anthony Brown 0 comments

Court allows gay man to adopt child

Maris Beck
September 12, 2010 – TheAge.com.au

A JUDGE has allowed a gay man to adopt his foster child in what is believed to be a first for Victoria.

The man, who cannot be identified for legal reasons, is in a gay relationship but has adopted the child by himself to comply with Victorian laws that make it illegal for gay couples to adopt a child together.

The New South Wales Parliament passed a bill this week giving same-sex couples full adoption rights, and similar rights already exist in Western Australia, Tasmania and the ACT.

The Victorian Commission for Equal Opportunity and Human Rights intervened in this case to protect the rights of the child, who had been abused and neglected until he was placed in the couple’s care four years ago.

Commissioner for Equal Opportunity Helen Szoke welcomed the judge’s order allowing the gay man to adopt the child, now 11, but said until the final judgment was made public, it was too early to say whether the case set a precedent. Dr Szoke said she was unaware of other cases of gay men being allowed to adopt children in Victoria.

”Until we see the reasons, it’s not clear what this does in relation to precedent or any changes long-term in relation to the laws,” Dr Szoke said. The 11-year-old boy told The Sunday Age he was overjoyed at the decision.

‘I’m really glad that I’m adopted. They always play with me and they do fun activities with me like going to the park and watching me play footy. It’s a really good thing.”

The boy’s adoptive father said it had felt like they were going on trial for their sexuality, and the possibility of losing their son had been ”hell”.

”It’s been a nightmare … in this limbo state.”

He said it had been a strain on him and his partner to decide who would be the one to adopt, but the outcome was just: ”We feel as though we’ve done our bit to help pave the path for others.”

The man’s partner said he could understand why some people thought every child should have a mother and a father but many children had neither.

He said when they first fostered their son, they had thought he had a speech impediment but then realised he had trouble speaking only because he had been so neglected. He is now confident and articulate, and his dads say he is thriving.

Karen Field, chief executive of Drummond Street Relationship Centre, said many foster-care agencies actively marketed themselves to gay couples and the state was heavily reliant on the assistance of gay foster carers.

She said the double standard that did not allow gay couples to adopt was ridiculous.

”In worst-case scenarios, you could have someone who could end up not being able to access a child that they’ve raised for a number of years.”

The Victorian Law Reform Commission said in 2005 it made ”no sense” that same-sex couples could be permanent and short-term carers for children in need but not assume the full legal powers and responsibilities.

Brian Lucas, general secretary of the Australian Catholic Bishops Conference, said: ”The general principle is that adoption needs to look at the welfare of the child and that will depend on very particular circumstances. I don’ t have any comment on the particular circumstances here.”

in Adoption / In the News  by Anthony Brown 0 comments

An Adopted Boy Considers His Origins

September 3, 2010
New York Times Magazine
By MELANIE BRAVERMAN

Jonah, our youngest, spent the day in the water again. At 5 he’s already an exquisite swimmer, diving for coins our Provincetown neighbors throw into the tide for him to fetch. Now we’re lying in his bed together waiting for him to fall asleep, and he’s thumping my stomach like it’s a beach ball.

“Are you going to have more babies in your belly?”

“You know I’ve never had any babies in my belly,” I tell him.

“Well, whose belly did I come out of?” he says.

My girlfriend, Molly, and I have always been frank about the fact that Jonah and his brother, Sam, were adopted, though until recently they’ve really only shown interest in the few details that feel glamorous: for instance, Jonah enjoys knowing that he was born on an island. The rest of how the kids came to us is so complex and adult, we’ve so far opted to leave it alone.

Scratch the surface and nobody’s birth story is typical. Our two children are biological brothers, and they have an older sister a friend of ours adopted first. Because of her special relationship to the boys, Sister plays a starring role in our house. Looking at the three of them leaves little doubt they’re related: ignore the height difference, and they could almost pass for triplets. A few days earlier we were having a bonfire at the beach. It was one of those ridiculously idyllic summer evenings at the seaside, replete with rainbows and a dolphin release the kids ran down to see. On the way back to the fire, Jonah tripped, catapulting him into a flood of tears. Sister grew more agitated the louder he wailed. Finally, in some kind of attempt to shut him up, she turned to him and said, “You didn’t come out of your mommy’s belly.”

“Now isn’t the time for this conversation,” Molly told her.

“You didn’t,” Sister continued, “you came out of the same belly as me. Her name was Cheri.” For Jonah, that belly never had a name before. That name was so revelatory you could almost see a light bulb in a thought bubble hovering above Jonah’s head. He began crying louder.

To Molly and me, our children are so completely ours it feels impossible that anyone else had anything to do with them. But for Jonah, who knows? Some would say, for example, that it was the hand of God that saved his namesake, the original Jonah, from the belly of the whale; others, that it was luck that caused the beast to spit him out.

So here I am in the bed with our youngest boy, telling him the truth as I see it: “Some babies come out of their mommies, and some come through other bodies to get to their mommies. My body couldn’t make babies, so we had to find another way to get you here.” I’ve told him this before, but the story no longer satisfies the way it once did. He may be only 5, but it’s time for Jonah to begin making his own version of the narrative.

“Whose belly?” he demands.

“Her name was Cheri,” I say, affirming it for him.

“I should be there with her,” he says.

I take a breath. “No,” I tell him. “Wherever Sam and your other mommy and I are, that’s where your home is. That’s where you should be.” And in a sure sign he knows that what he’s hearing is correct, he begins to cry hard.

In a little while I feel him exhale long and slow, his back relaxing against my hands that are holding him in place like bookends: Your body begins here, and it ends here. You are safe. By now he’s exhausted, but he’s too smart to take my word for anything yet. “What if you and Mommy and Sam get dead and I’m left here all alone?” he says.

Even though I can’t say for sure, I opt for kindness over stark possibility, which I maintain is every parent’s prerogative. “Not gonna happen,” I tell him. And he falls asleep.

For days after, Jonah vacillated between being demonstrative and being withdrawn, all the thinking about his origins rendering him tender, as if from sunburn. The summer carried on in its relentless perfection. We were on the beach the other day when I overheard him tell a friend, “I was born on an island, you know.”

“Really?” the friend said.

“Yes,” Jonah said, “and they weren’t my mommies,” pointing like a hitchhiker with his thumb to Molly and me.

“So how’d you get here?” his friend asked.

“I swam a hundred miles to get home,” he said.

Melanie Braverman, a poet and novelist, is the Jacob Ziskind poetry fellow at Brandeis University.

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New South Wales Passes Gay Adoption Bill

by Allison Marcotte | Article Date: 09/03/2010 1:56 PM

A bill that would allow same-sex couples to adopt children was passed Thursday by the lower house of parliament in New South Wales, Australia’s most populous state.

According to The Australian, the bill passed with a close vote. It will allow same-sex couples to adopt a child together, as they can in the Australian Capital Territory and in Western Australia.

“Forty-six MPs voted for the historic bill and 44 voted against it yesterday, after a two-day debate,” reported The Australian on Thursday.

In an effort to make sure the bill passed, Sydney MP Clover Moore, who introduced it, included an amendment to allow religious adoption agencies to refuse service to same-sex couples without violating antidiscrimination laws.

in Adoption / In the News  by Anthony Brown 0 comments

Mexico Supreme Court Upholds Gay Adoptions

August 16, 2010
New York Tikes
By THE ASSOCIATED PRESS

 

MEXICO CITY (AP) — Mexico’s Supreme Court has voted to uphold a Mexico City law allowing adoptions by same-sex couples.

Monday’s 9-2 ruling by the justices rejects a legal challenge by federal prosecutors and others who argue the law fails to protect adoptive children against possible ill-effects or discrimination.

The court voted earlier this month to uphold the other portion of the Mexico City law which legalized same-sex marriages.

The law applies only in Mexico City.

in Adoption / In the News  by Anthony Brown 0 comments

Sharron Angle Opposes Gay Adoption

 

By Carlos Santoscoy
Published: August 16, 2010

Sharron Angle, the GOP nominee challenging Nevada Senator Harry Reid, is taking a new tact in discussing social issues: she’s ignoring them.

Angle’s stumbling over social issues, including gay rights, appears to be coming to a close.

The 61-year-old Southern Baptist recently made headlines when The Associated Press published a four-page questionnaire filled out by Angle for the Washington-based group Government is not God, which has endorsed Angle’s candidacy.

Among her positions, Angle opposes protections based on sexual orientation and gay adoption. She also believes clergy should be allowed to campaign from the pulpit on behalf of political candidates, which is currently banned by the federal government.

In a section titled politics, she says she would refuse PAC money from those who are fundamentally opposed to her views on social issues.

“In reference to question 35A, Intel Corporation supports ‘equal rights for gays’ and offers benefits to ‘partners’ of homosexual employees. Would you refuse funds from this corporate PAC?”

“Yes,” Angle checked.

The sixty-one-year-old former Nevada assemblywoman boasts about her support for the state’s ban on gay marriage at her campaign website.

Yet at a business networking breakfast on Tuesday, she steered clear of these issues.

When asked by a man, “What about those of us that are disenfranchised from Social Security because we are gay or lesbian and consequently are not allowed to marry, not allowed spousal benefits?” Angle elegantly shifted the conversation from gay marriage to citizen empowerment.

She told the man that he had just touched on what’s wrong with Social Security: “It doesn’t belong to us.”

“If you had a personalized retirement plan, you would be allowed to invest that 15 percent over the years, and that would then be yours to pass down as an inheritance,” she answered.

“Pivoting off the gay marriage question to Social Security, that’s a textbook example of answering the question you want to answer instead of the one you’re asked,” University of Nevada at Reno political science professor Eric Herzik told AOL News.

Senator Reid is facing a difficult re-election campaign that promises to test his lukewarm support for gay rights. Forty-eight percent of the state’s voters have a “very unfavorable” view of Reid and sixty-two percent describe him as a liberal, according to the latest Rasmussen poll.

Gay rights groups, on the other hand, continue to press the Senate majority leader on difficult issues, including whether he’ll help a federal gay workplace protections bill (ENDA) reach the Senate floor and the timing of a vote on repeal of “Don’t Ask, Don’t Tell,” the 1993 law that bans openly gay troops.

Reid has promised the Senate will vote on repeal of the gay ban in September, before the midterm elections.

in Adoption / In the News  by Anthony Brown 0 comments

An End to Gay Adoption Bans?

July 28, 2010, 11:26 am – New York Times –

By LISA BELKIN

Data drives policy. Or, at least, it should. In recent months there have been several studies suggesting that children raised by same-sex couples are certainly no worse off (and in some ways are arguably better off) than children raised by heterosexual couples.

Now, in an article titled “Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?” in the August issue of the journal Applied Developmental Science, researchers go one incremental but important step further. Rather than simply letting the research speak for itself, they conclude that their new findings should lead to the end of existing bans on adoption by same-sex couples in the United States.

“From a policy perspective, our results provide no justification for denying lesbian and gay adults from adopting children,” Rachel H. Farr and Charlotte H. Patterson, of the University of Virginia, and Stephen L. Forssell of George Washington University write.

At the moment, three states — Florida, Mississippi and Utah — explicitly prohibit gay couples from adopting, and a similar law is being challenged in the Arkansas courts. Twenty-nine states, plus the District of Columbia, on the other hand, explicitly permit such adoptions, and the remainder have imprecise language in their adoption statutes. The reason most often given by opponents of single-sex adoption is that children do best with a mother and a father.

Over the past year, a parade of studies have all set out to test that assumption. What makes this latest one different was that, for the first time, research on the social development and psychological health of children was not based on the opinions of their parents alone but also of outside observers (teachers and care givers.) And, also for the first time, a control group of heterosexual families was used. The University of Virginia and George Washington researchers studied preschoolers who were adopted at birth by 27 lesbian couples, 29 gay male couples and 50 heterosexual couples. (Yet another groundbreaking aspect to this study was the number of gay men who were included; to date most of the research has been on lesbian mothers.)

What did they find? That it’s the quality of the parenting that creates a psychologically healthy child, not the sexual orientation of the parents.

The implication: From a public-policy stance, the study suggests there is “no justification for denying lesbian and gay prospective adoptive parents the opportunity to adopt children,” Patterson, the lead researcher, said.

Which could, and should, but probably won’t, put this question to rest.

in Adoption / Second Parent Adoption  by Anthony Brown 0 comments