More About North Carolina–What Was The Court Thinking?

I wanted to say a bit more about the decision I discussed yesterday.  I strongly recommend you go back and read that post before heading on here, as I’ll only give the briefest summary.

Just before Christmas the North Carolina Supreme Court issued an opinion holding that a second-parent adoption was void ab initio–that is, void from the beginning, as if it never was.   Now as I said, I don’t really have an opinion about North Carolina law and whether the Court is correct in interpreting the statutory structures there.   My main concern–the one I want to rant about a bit here–is that the opinion doesn’t just affect the people involved in the case (two women who had co-parented a child).   It appears to void all second-parent adoptions that have been completed in North Carolina.  

That’s deeply troubling and quite unusual in the grand scheme of things.   I’ll come back to the oddity of the court’s approach in a moment.  I want to start with why the decision troubles me so.   

Imagine that somewhere in North Carolina there’s a lesbian couple with a five-year old child.  One woman gave birth to the child and her partner completed a second-parent adoption.  They’re a happy little family.   They think they are both legal parents of the child and that all the accompanying rights and obligations of parenthood are thus secure.   But they are wrong.   The North Carolina Supreme Court voided their adoption, too.

Why might this matter?   Well, suppose the adoptive mom is injured or killed.   If she was a parent, her child might well be eligible to receive various benefits via Social Security.    But as of a couple weeks ago, she’s not a parent any more and the child won’t be eligible.  Or perhaps the child is eligible for health insurance because of the adoptive mother’s employment?   Not any more.   Not a legal parent, no more health insurance.

There a many reasons why status as a legal parent is important.   And  there are probably a number of people in North Carolina who don’t realize that they aren’t legal parents any more.   They may not read the news carefully enough or maybe they were away on vacation when the case was decided.   They may only find out they aren’t legal parents when it really matters most–when they try to make a claim on insurance and the insurer challenges the child’s eligibility, say.  

I cannot fathom why the court, which didn’t generally seem that hostile to lesbian families (remember, it affirmed a joint custody order) didn’t appreciate the sweep and scope of their decision.   Yet there’s no suggestion that it did.  

Which brings me to the utter oddity of the case.  It’s generally well understood that you cannot challenge a completed adoption except if you do so within a very short time frame.    North Carolina apparently follows this law.   (That’s the dissent’s opening point.)  Yet for some reason, this plaintiff was permitted to challenge an adoption several years after it was completed and wipe out not only the adoption at issue in her case but also an uncounted number of others, long after the fact.    

The North Carolina Court is not the first state court to find that second-parent adoptions are not available under its state law.  But every other court I’m aware of that has reached this conclusion has created a rule that is forward-looking only– no more after now.    No other court has voided an entire class of long-finalized adoptions.   

You may recall that when the California Supreme Court affirmed the validity of Proposition 8, it also found that marriages that had been conducted before passage of the initiative remained valid.   This isn’t a perfect parallel for a number of reasons, but it is a far more typical approach to changing the law.  Instead of going that route, the North Carolina court chose an idiosyncratic and wildly destabilizing path.    More’s the pity.  

And that’s my rant for the day.   Sigh.

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