I’m going to interrupt my ongoing comparison of the Oregon and DC standards for parenthood via joint venture in order to discuss a new case from North Carolina. It’s a mid-level appellate court case affirming the validity of what is effectively a second-parent adoption in the face of a challenge to it by one of the parties. This is an important step forward for North Carolina law.
Julia Boseman and Melissa Jarrell began a lesbian relationship in 1998. They wanted to have children. Jarrell gave birth to a child in 2002 following assisted insemination. At that point, under North Carolina law, Jarrell was a legal parent (because she gave birth) and Boseman was not. (Just as a side note, under the DC and Oregon approaches I’ve been discussing, Boseman would be deemed a parent from the time of the birth by virtue of having participated in the process of insemination and agreeing to it at the outset. )
In the next few years two notable things occurred. First, together the women raised the child. I put this first in order to note that under most de facto standards (like that now in use in Delaware) this would give Boseman the status of a legal parent.
Second, Boseman sought to adopt the child. There are several very good reasons for Boseman to do this. First, North Carolina doesn’t recognize any of the other theories that would make Boseman a legal parent. Second, as I’ve discussed elsewhere, an adoption is clearly portable and must be recognized by other states.
The procedure that allows Boseman to adopt while maintaining Jarrell’s rights as well is commonly called a second-parent adoption. This is essentially what the women sought. It’s not specifically allowed in North Carolina, but it isn’t disallowed either.
In August, 2005, a court approved Boseman’s adoption of the child. In order to accomplish the desired end (which was that both women be recognized as legal parents) Jarrell waved her entitlement to have her own parental rights terminated upon the completion of the adoption. (The general practice in adoptions is that the new adoptive parents replace rather than supplement the previous parents.)
The two women separated in 2006 and Jarrell restricted Boseman’s contact with the child. Boseman filed a court action seeking access to the child. She was willing to agree to Jarrell retaining custody in exchange for liberal visitation.
In this action, Boseman relied on her status as a legal parent. Jarrell in turn attacked the adoption. This opinion is a determination of that dispute, upholding the adoption.
One key point in Boseman’s favor is the general policy of making challenges to adoptions extremely difficult. As the recent case out of Maine illustrates, adoptions are intended to be final. North Carolina follows this rule, and thus Jarrell begins with a steep hill before her.
While North Carolina does recognize step-parent adoptions, the appellate court does not consider this as akin to a step-parent adoption because a step-parent is married to a parent and, of course, the two women were not married. Instead the court considers this an adoption with a waiver of the right to termination of the parental rights of the pre-existing parent.
As the court sees it, this termination serves the parent whose rights are terminated and does not serve the child (who loses a parent in the ordinary process.) Since the right to termination is the pre-existing parent’s right and not the child’s, the pre-existing parent can waive that right, as Jarrell did. Finding the waiver proper, the court affirms the adoption, which gives Boseman the right to claim access to the child as any parent could.
The court’s approach is noteworthy. It makes this into an general adoption case rather than relying on the analogy to a step-parent adoption. Technically, the adoption does not depend on the relationship between Boseman and Jarrell. It depends on the stated desire to provide the child with two legal parents and Jarrell’s willingness (at the time of the adoption anyway) to waive her right to termination of her own rights. I assume the court chooses this route in order to avoid controversy over same-sex adoption (it says as much) and access to marriage. But in any event, the opinion appears to create a path to the creation of two-legal-parent non-marital families in North Carolina.