Custody laws don't always fit families

Cases could force state to define 'parent'

RALEIGH -- State Sen. Julia Boseman helps make the laws that are supposed to protect the state's citizens, but no law specifically helps her in securing custody rights to her 4-year-old son.

Boseman, a Wilmington Democrat and the state's only openly gay legislator, has sued her former partner, seeking joint custody of the boy. The litigation comes just as other, similar cases are headed toward the N.C. Court of Appeals, and could alter how North Carolina defines "parent."

North Carolina, like most states, does not clearly spell out who should be considered a parent. Neither court decisions nor legislation have kept up with changes in family structure, children raised by unmarried couples, whether they are gay or straight, according to legal experts.

"There are many millions of children in this country who are being raised by people of the same sex who are not married, people of the opposite sex who aren't married, grandparents, step-parents and psychological parents," said John Mayoue, a family law attorney in Atlanta and author on custody issues.

Donors and surrogates

The law also has lagged behind the medical technology of surrogate mothers, and sperm and egg donors who leave parents with no biological connection to their child.

Neither families nor children are always created as they used to be.

Sharon Thompson, a Durham family law lawyer who specializes in aiding gay and lesbian couples, said she has ended up in complex disputes over whose names could and should be on a birth certificate. State officials refused to put both the genetic mother, who donated the egg, and the birth mother on one certificate.

In other cases, either the sperm donor or the egg donor did not intend to be a legal parent, but could keep his or her name off the birth certificate only if there was a court order determining who the child's parents would be.

"The state agency that issues birth certificates is sometimes at odds with a judge's interpretation," said Thompson, a former N.C. House member. "It hasn't been addressed on a statewide level."

Some conservatives worry about what the courts might do in terms of granting custody rights, particularly to non-biological parents in same-sex couples.

"It would raise concerns among the vast majority of people in North Carolina," said Sen. James Forrester, a Gaston County Republican. "That's an unhealthy relationship for a child to grow up in. The Lord intended for a family to have one man and one woman. That's my opinion, and I'm sure others have theirs."

Lawmaker's case

In Boseman's case, she was involved in a long-term relationship. Her then-partner, Melissa Jarrell, was artificially inseminated and gave birth in October 2002, according to Boseman's lawsuit. The couple split up last year, and the boy has been spending time with both women, the court file said.

Boseman seeks secondary custody, while Jarrell would retain primary custody, the suit said.

"This is a difficult time for our family, but because of the pending legal matter, it would be irresponsible for me to talk about it at this time," Boseman said.

Boseman, who was elected to a second term last year, has not written any bills regarding gay rights or custody rights.

She filed her case in January, and it has not gone to trial. Another dispute, out of Durham, is expected to be heard before the state Court of Appeals either late this year or early next year.

Irene Dwinnell is trying to overturn a trial court decision last year to give her former partner, Joellen Mason, joint custody of a son whom Dwinnell conceived through artificial insemination by an unknown donor.

"Only [Dwinnell's] name appears as a parent on the minor child's birth certificate," Dwinnell's lawyer argued in a legal brief.

A key difference in the cases is that Boseman legally adopted her son, which can be difficult to do in a same-sex relationship in North Carolina. The law neither explicitly prohibits nor allows such adoptions, but some judges believe the law provides enough latitude to adopt.

"Many lawyers are surprised and think you can't do it. But there are judges who think it is possible to do this under current law," Thompson said.

Boseman's lawsuit, though, anticipates the possibility of that adoption being challenged, saying that she can still sue for parental rights as a "de facto parent" who has established a "deep emotional bond" with the child.