Same Sex Adoption Nullified By Court UPDATE: More from the Wilmington Star.
Original post:
The North Carolina Supreme Court today held that there was no statutory authority for same-sex couples to adopt a child in North Carolina without terminating the parental rights of the biological parent. The decision reversing a prior decision of the Court of Appeals was 5-2.
The case, Boseman v. Jarrell, made it to the Supreme Court when former state Senator Julia Boseman and her lesbian partner had a child through artificial insemination from an unnamed donor. Jarrell carried the child to term and is the biological mother. After the child was born, Boseman filed a petition to adopt the child. A Durham County judge "waived" the provision in state law that mandated that adoption terminates the parental rights of the biological parent. This was done in an effort to preserve Jarrell's rights while allowing Boseman to become the second legal parent. As the Supreme Court correctly noted:
"In her petition for adoption, plaintiff explained to the adoption court that she sought an adoption decree that would establish the legal relationship of parent and child with the minor child, but not sever that same relationship between defendant and the minor child. As we have established, such relief does not exist under Chapter 48."
There is no such waiver provision in North Carolina adoption law. In fact, the statutory language is quite clear that the termination is a "mandatory" provision. Nonetheless, the activist judge in Durham County has been granting these types of unauthorized adoptions for a while now.
The matter was brought into the court system because Boseman and Jarrell soon separated and became involved in a custody suit over the child (I avoid the cliche "custody battle" at all costs). Boseman sought custody and Jarrell responded that the adoption that she colluded to and consented to was invalid and therefore Boseman was a third party who had no standing to seek custody.
The validity of the adoption made it way through the courts until the decision today.
The Court invalidated the adoption, but did hold that Boseman had legal standing to assert equal custodial rights with Jarrell based on existing case law.
This was the correct decision by the Supreme Court based on the current adoption statutes, and regardless of how one feels about same-sex adoption, this is a victory for those who oppose judicial activism. What was happening in Durham County by one activist judge was trampling the law in order to achieve a socially desirable outcome. This was one of the more egregious acts of judicial activism that I can recall- one where a Court decided that the word "mandatory" really didn't mean "mandatory" at all and could instead be waived.
If the legislature chooses to modify the adoption statutes to enable the outcome that Boseman and Jarrell initially desired, that is within their province. But it is not a decision to be made by one judge who simply doesn't like the status quo.
Read also: Beyond (Straight and Gay) Marriage
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].”
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