On October 14, 2014, North Carolina began recognizing same-sex marriages due to a federal court decision finding the state’s denial of marriage rights to same-sex couples unconstitutional. North Carolina had previously denied marriage rights to same-sex couples by law since 1996.
With this new and exciting shift in the law comes state’s rights to married same-sex couples, one of which includes the availability of same-sex couples who are married to adopt in North Carolina.
Some civil district courts have allowed second-parent adoptions by same-sex couples in the western and central part of the state until 2010 when the North Carolina Supreme Court ruled 5-2 in the case of Boseman v. Jarell that the state law did not permit adoption by a second unmarried person regardless of the sex of those involved. The plaintiff in that case garnered much attention as Julia Boseman, a female gay member of the North Carolina State Legislature. In June 2012 other same-sex couples sued in federal court seeking second-parent adoption rights. In 2013 the lawsuit was amended to challenge the constitutionality of the state’s denial of marriage rights to same-sex couples. The shift in the law occurred on October 14, 2014 when U.S. District Judge Osteen ruled for the Plaintiffs.
Current North Carolina Adoption statutes allow our state’s citizens to adopt via direct placement, agency placement and stepparent adoption. Originally adoption was allowed by a married man and woman or by a single parent. Same-sex couples, while even validly married by another state, were not allowed to adopt in North Carolina; however, one partner could adopt as a single parent and later extend some rights in loco parentis to a partner such as a power of attorney or custodial rights. Some civil district courts have also given legal standing to a same-sex partner in custody actions and granted custody rights to the other partner, whether a biological parent or not, upon the parties’ separation.
The process for a same-sex stepparent adoption will follow the current process under existing Adoption statues (North Carolina General Statutes § 48, Article 4) and forms for a stepparent adoption. This can occur when a single parent has already secured an adoption for the minor child. The same-sex parties must already be validly married and have a marriage certificate.
The Petitioner will be the spouse of the partner who has legal custody of the minor child. The spouse with legal custody of the minor child must consent to the adoption and will retain all legal rights to the child. The adoption process will still be mostly transactional in nature with a Clerk of Court being able to issue a Decree for Adoption if it is found by a preponderance of the evidence that the adoption is in the child’s best interest and 90 days have passed since the filing of the petition, unless the timely requirement is waived for cause. It is only necessary for a judge to hold a formal hearing if the Petition to adopt a minor stepchild is contested.
The process for adoption via same-sex couples through direct placement or agency placement is still unclear at this time by our Courts. Currently these adoptions require consent, relinquishment, and/or termination of parental rights by the living biological parents to the petitioner(s), even if one biological parent is an unknown parent. Fathers may still execute pre- birth consent to adoption.
If you or someone you know is interested in speaking with an adoption attorney regarding married same-sex couples and Second Parent Adoptions, please do not hesitate to contact Wilmington, NC attorney Ashley Michael at Craige & Fox, PLLC.