November 28 • 02:44
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Same-sex couple adoption ruled invalid in North Carolina

December 21, 2010
The N. C. Supreme Court yesterday (12-20-10) outlawed same sex couple adoptions. In a case involving a state senator from Wilmington the court ruled that District Court judges in Durham and Orange counties have been violating the uniform adoption laws of North Carolina by issuing adoption orders that waive the natural parents parental rights as a condition of adoption. In the case of Boseman v. Jarrell the court held that in order for a child to be adopted the biological parents must either have their parental rights terminated or must waive such rights to make the child eligible for adoption.

In recent years, some more liberal judges have taken it upon themselves to allow adoptions without the biological parental rights being terminated first. The Supreme Court said that is illegal, thus eliminating a legal way for two parents of the same sex to adopt a child that is the offspring of one of the partners. The court, in a 5-2 decision, said that any such change must be made by the legislature, not by a judge.

The court also held that "…by intentionally creating a family unit in which defendant (biological parent) permanently shared parental responsibilities with plaintiff (same sex partner), defendant acted inconsistently with her paramount parental status."

However, the court upheld a New Hanover District Court decision to award future joint custody because the court held that the district court judge had correctly applied the "best interest of the child" standard to future custody.

You can read a vivid description in the court decision about the circumstances of how the child was conceived, born and raised until the estrangement of the homosexual relationship without a biological father being involved.

This case has profound implications both under existing laws and for future legislation.

First, it has profound implications for those adoptions that have been grant by district court judges that are now invalid. Those same-sex couples who have used this "method of child rearing" now have a problem. The decision also blocks adoption agencies, including departments of social service and private adoption agencies from facilitating same-sex adoptions. It does not, however invalidate step-parent adoptions, which are specifically addressed in the decision.

The "bottom line" is this: Same-sex adoption is illegal in North Carolina unless the legislature changes the law to allow same-sex marriage or to explicitly allow same-sex adoptions.

As a side note, the two dissenting opinions (Timmons-Goodson and Hudson) are interesting. They argue that because state law says that an adoption order is final and no party has standing to contest them once they are entered that the District Court judge's order in Durham County (granting the same-sex adoption based on parental waiver) should stand. However, as clearly explained in the court's decision, that order was invalid because the court lacked jurisdiction to issue the order in the first place. This raises interesting question about the court's opinion.

In the court's decision they go into explicit details about the arrangements around this child's "family circumstances." That would ordinarily not have been called for. If the district court had no jurisdiction to issue an adoption order in the first place (because of the waiver of parental rights issue) then that is all the court would have had to say to settle the controversy. But it rendered a 23-page decision that would appear to be an overt attempt to ban same-sex adoptions on their face, absent legislative action providing for such. And that does not seem likely in the current General Assembly, which is said to be considering voting to submit a constitutional amendment to the people to allow them to determine whether same-sex marriage will be legal in North Carolina. Thus, the "final decision" has apparently not been redered on this matter yet.

  1. reply print email
    Judges fail to make law
    December 21, 2010 | 09:27 AM

    I'm amazed. It seems the normal thing is for judges to find some way to inflict their personal will, regardless of what the law says. In this case, the judges judged strictly based on law. Hurrah!

  2. reply print email
    Tea party social engineering
    December 21, 2010 | 10:02 AM

    I figured it was only a matter of time until the tea party decided they had a right into people's bedroom's, and infringe upon personal liberties. As long as you think differently from a conservative, you don't really have the same rights, do you?

  3. reply print email
    About time
    December 21, 2010 | 10:21 AM

    these district court judges should be reined in on the domestic cases. They sit as if they are God and decide whatever they want to decide, regardless of what the law says. And that situation is about as bad in Beaufort County as anywhere. In this county, at the district court level, we have a group of judges who seem to think they need not follow the law, but just rule however they think best...or dependent on who the players are. We have a system of men, not of laws. Unfortunately, most of us mere mortals can't afford to appeal to the Supreme Court so ordinary folk in Beaufort county are just stuck.

    Know too much
  4. reply print email
    Hey Bob
    December 21, 2010 | 11:29 AM

    what's your problem with the Tea Party? They had nothing to do with this case that I can see. But if the Tea Party or anyone else believes that district court judges ought to have to follow the law I think they are right on track. The real question here is who should decide. And I think it should be the people.

  5. reply print email
    This is a major problem in North Carolina
    December 21, 2010 | 03:33 PM

    District court judges hear all domestic cases. That includes adoptions, child custody, divorce, visitation etc. But if the district court judge issues a bad ruling the only recourse is to spend thousands of dollars (often tens of thousands) to appeal to the Court of Appeals. So when they know their ruling is not likely to be reviewed they do whatever they want. Something really needs to be done about this. Family law in North Carolina is a shame and disgrace. Talk to ANYBODY who has been through the system and I dare say you will not find ANYBODY who believe the system works the way it should. It is a racket between judges and lawyers. Half the lawyers in the state would go broke if the system were corrected as it should be.

    No name please.
  6. reply print email
    This just goes to show
    December 21, 2010 | 03:56 PM

    why we need video cameras in ALL courtrooms and it should be streamed live on the internet. These judges should know somebody is watching them. Sunshine would do more than anything to clean up a stinking system.

    Been there, done that
  7. reply print email
    December 21, 2010 | 06:17 PM

    This is not intruding into anybody's bedroom. You do not have a 'right' to adopt a child. If NC law is going to be changed, let it be changed. The 'tea party' supports judicial restraint and the rule of law.

    Mike P.
  8. reply print email
    December 22, 2010 | 02:59 PM

    My son was illegally took up there in 1983 and I'm reopening the Civil case next year and everybody will see this original independent stone-mason by trade apply the Federal Law to officials. I've studied and practice Federal Civil Law since 1987

    Melvin Earl Swanson Sr.
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