This is not the way I would have wanted to pick up a new year’s worth of blog posts, but just before Christmas, the North Carolina Supreme Court handed down and important (and deeply troubling) decision. You can read the actual opinion here or go here for some press coverage. I also wrote about this case at an earlier (and happier) stage.
The case begins with a familiar if sad scenario. Julie Boseman and Melissa Jarrell, a lesbian couple, decided to raise a child together. Jarrell became pregnant via insemination with sperm from an anonymous provider. Their son, Jacob, was born in October, 2002.
Jarrell and Boseman lived together with Jacob until 2006, at which point they separated. There’s no doubt that each of the women acted as Jacob’s mother before their separation, sharing the responsibilities and obligations of parenting. Nevertheless, when they split up Jarrell limited Boseman’s time with Jacob. (Should it be important to you, I’ll note that Boseman paid child support though there was no legal order directing her to do so.)
This far the case resembles a string of others I’ve blogged about where lesbian co-mothers end up in bitter litigation. But there is a very important additional factor here: Jarrell and Boseman recognized that after Jacob’s birth Jarrell had legal rights as a parent while Boseman did not. In order to secure Boseman’s rights, the two women went to court in 2005 and requested that Boseman be recognized as an adoptive parent of Jacob. The court complied with this request.
Now this is what is known generally as a second-parent adoption, because the child ends up moving from having one legal parent to having two legal parents. The critical thing that distinguishes a second-parent adoption from regular adoption is that the first parent’s rights aren’t terminated. Instead the additional (second) parent is added.
Probably the most common setting for this sort of proceeding is what is called a step-parent adoption–but a step-parent is typically married to a parent and of course, in most places a lesbian partner cannot be married to a parent. Hence, a slightly different terminology–a second-parent adoption. (If you want more background on second-parent adoptions generally, try here and then poke around a bit.)
Anyway, the women completed a second-parent adoption, which meant that both women had full legal rights as parents of Jacob. With the adoption in place, when the women split up, you end up with an ordinary custody fight between parents. That’s never a good thing, but it’s a familiar one–the result generally turns on a court’s assessment of the best interests of the child.
But apparently Jarrell wasn’t content to go with the best interests approach, with Boseman on a legal footing equal to hers. So she challenged the adoption. The challenge was rejected by the lower courts but in this opinion the NC Supreme Court accepted it and ruled that the adoption was void ab initio. That means it is as if it were never concluded.
Now I’m not going to take the time to discuss NC law and how the court reached its conclusion–I’m not well-versed (this is putting it mildly) in NC law and I have little to say about it. However, what the majority did is both unusual and unwise without any regard to the subtle intricacies of NC law.
Generally speaking you cannot challenge an adoption several years after it has been completed. (This is clearly the case in NC–check out the first lines of the dissenting opinion–page 24.) There are good and obvious reasons for this. Once an adoption is completed (here with the complete consent and participation of the first parent), the child’s life is structured around that legal fact. To allow someone to undo it several years later is to completely disrupt the child’s world.
Oddly, I think the majority recognized this in some way. While it voided the adoption, in affirmed the joint custody order between the two women. Thus, it recognized that Jacob’s life included two parents and affirmed the allotment of time between them. In this sense, Jarrell didn’t get what she wanted–she ended up with a shared custody arrangement even without the adoption.
So you might think this case doesn’t matter much–Jacob still has two mothers even without the adoption. But here’s the thing: The North Carolina court’s opinion doesn’t just apply to Jacob. It applies to all the other second-parent adoptions that have been conducted there–or so it would appear. All the second-parent adoption completed in NC, even those where the two parents are perfectly happy raising their kids in a unitary family, are void. With the stroke of the pen, the NC court deprived all those families of the legal security that the adoptions provided.
I have no idea what made the NC court step so far outside the lines. The majority doesn’t (as far as I saw) even discuss the established law that you cannot challenge an adoption well after the fact. The majority seems oblivious to the havoc its ruling will bring to many North Carolina families.
I think this might warrant a little more discussion tomorrow, so I won’t rave on just now. But the court could perfectly well have made its ruling forward looking only–no more second-parent adoptions–without voiding the existing ones. I am not saying I’d be happy about such a ruling, but it would not have had the immense disruptive consequences that this ruling does indeed have.