Brief Filed In Same-Sex Adoption Case

Special Report - March 3, 2010
The North Carolina Family Policy Council (NCFPC) filed an Amicus Brief yesterday in the case of Boseman v. Jarrell, an appeal before the State Supreme Court that will likely determine whether same-sex couples can legally adopt children in North Carolina. In the brief the NCFPC, along with NC4marriage, The American College Of Pediatricians, The Christian Action League of North Carolina, and The Christian Family Law Association, asked the North Carolina Supreme Court to rule that North Carolina adoption statutes do not allow adoptions by same-sex partners. They also asked the Court to end the practice of allowing unrelated third parties to obtain custodial rights of minor children merely because the child’s parent has allowed the third party to establish a relationship with the child.

State Senator Julia Boseman filed the suit against her former lesbian partner, Melissa Jarrell, seeking custodial rights to Jarrell’s biological son. While she and Boseman were cohabiting partners, Jarrell conceived the boy by artificial insemination. Through the use of an improper legal device known as “second-parent adoption,” Boseman obtained a decree of adoption from the Durham County District Court. The adoption has since been upheld by the District Court in New Hanover County and the Court of Appeals. Jarrell, the child’s biological mother, is now estranged from Boseman and seeks to have the adoption declared void, so she can retain full custody of her child. She is appealing the Court of Appeals’ decision upholding the adoption, and she filed her brief in the Supreme Court proceeding on February 26th.

North Carolina adoption laws allow for three scenarios in which adoption may take place—an agency places a relinquished child for adoption; a step-parent who is legally married to the child’s parent adopts the child; or the child’s parents directly place the child into the adoptive parents’ family, by severing their parental rights. In all cases, statutes allowing adoption seek to place adopted children in a premier childrearing environment consisting of a mother and a father who are married. When an agency or the biological parents place the child for adoption, North Carolina statutes state that: “A decree of adoption effects a complete substitution of families” and “severs the relationship of parent and child between the individual adopted and that individual's biological parents. After the entry of a decree of adoption, the former parents are relieved of all legal duties and obligations due from them to the adoptee.” The biological parents must sign a consent form stating that they are severing their parental rights as part of the adoption proceeding. These requirements are intended to protect the child from the unwanted interference of the former parent, thus from having two families who are hostile to each other.

In this case, the District Court granted a Decree of Adoption that allowed the biological mother, Jarrell, to maintain the parent and child relationship, along with her parental rights and duties, between herself and her child, while establishing a parent and child relationship between Boseman and Jarrell’s child. This has been called “second-parent adoption,” which is commonly defined as: “An adoption by an unmarried cohabiting partner of a child's legal parent, … especially an adoption in which a lesbian, gay man, or unmarried heterosexual person adopts his or her partner's biological or adoptive child.” The North Carolina adoption statutes do not specifically allow second-parent adoptions, but they have become the vehicle used by same-sex couples to get around adoption laws.

Although Boseman lives in Wilmington, she obtained her adoption in Durham, apparently because the Court there is sympathetic to same-sex partner adoptions. Last fall the Raleigh News & Observer reported that, “Hundreds of gay couples in North Carolina have turned to judges in Orange and Durham counties to give them what most courts won't: the legal right to be a parent to their partner's child.”

The Amicus Brief (or friend of the Court brief) was filed on behalf of the NCFPC and the other non-profit organizations by four North Carolina allied attorneys for the Alliance Defense Fund. One of those attorneys, Tami Fitzgerald, said “This was a case of collusion by the parties and the District Court Judge to ignore and turn on its head the requirements of the adoption statutes. The Supreme Court must decide whether the District Court can override the public policy of the State clearly expressed by the General Assembly in the statutes regulating adoption and marriage. We believe that the District Court has overstepped its authority, and we are hopeful that the Court will make clear that unmarried cohabitants—whether homosexual or heterosexual—cannot legally adopt a minor child in North Carolina.”

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