Hundreds of gay couples in North Carolina have turned to judges in Orange and Durham counties to give them what most courts won't: the legal right to be a parent to their partner's child.
The discreet and little-known practice came to light this week in a state Court of Appeals ruling on a custody battle between a biological mother and her estranged partner, a state senator.
Now that the practice has been exposed, some lawmakers and legal experts say the adoptions should stop.
The judges who granted them say they're more confident and committed than ever to extending parental rights to unmarried partners.
"These are nothing but good situations, nothing but harmony and hope and a desire to care for a child," said Pat DeVine, a recently retired Orange County District Court judge who works as a substitute judge. "It's 2009, and we have situations we didn't have 20 years ago. The polar star is what's in the best interest of the child."
The appeals court ruling upheld a 2005 adoption by Sen. Julia Boseman of her partner's son. The child was conceived by Melissa Jarrell of Wilmington through artificial insemination; she and Boseman jointly raised the boy.
After the couple split, Boseman sought joint custody; Jarrell argued that the adoption wasn't valid because the law doesn't allow unmarried partners to have such parental rights.
The court's decision validated only Boseman's adoption, giving her standing to fight for joint custody of her son; it did not make a sweeping pronouncement about unmarried couples' rights.
Unmarried couples, mostly gay or lesbian, have long been denied the legal protections guaranteed by adoption.
North Carolina's rules
State law spells out two scenarios in which people can adopt. In one, a stepparent, legally married to the child's mother or father, can adopt the child. In the second, a legal parent must surrender rights to a child before another person can adopt.
That has put gay couples committed to raising a child together in a tough spot. Without an adoption, the partner not tied to the child has no inherent rights or responsibilities, such as child support obligations. It presents a dilemma if the couple splits and they try to negotiate custody.
"Everyone wishes there's a mother and a father and a happy family, but the truth is that our families are not like that," said Marcia Morey, Durham County District Court judge who granted Boseman's adoption in 2005. "Families come to us for answers, and we will give them based on the best interest of the child."
Such adoptions became commonplace in Durham County in 2002. Sharon Thompson, a Durham family lawyer and a former state representative, asked her county clerk of courts and local judges to consider what she had seen a few other states do: waiving the requirement that a parent forfeit rights before another can adopt.
Thompson said that citizens can waive legal rights. She argued that surrendering legal parenthood before an adoption is a benefit and protection for the parent who wishes to give up the child. Therefore, she argued, the surrender is a right that can be waived.
"I certainly didn't invent the concept," said Thompson, who has handled hundreds of these adoptions in Durham and Orange counties. "It's not widely used, but it's legally sound."
Parents from across the state have hired Thompson to secure a second-parent adoption. She said that she's presented these cases in her home county of Durham and also had success in neighboring Orange County.
She said it would have been foolish to request such adoptions in counties that have been hostile to adoptions by a gay individual, let alone a couple.
"If people fault me for going to Durham County, the fault is with counties that refuse to follow the law and deny adoptions simply because someone is gay," she said.
Adoption law experts say Thompson's method isn't valid. Even the Court of Appeals gently criticized the process in its ruling this week.
Cheryl Howell, a family law expert at UNC-Chapel Hill's School of Government who trains district court judges, said it's a mistake for judges to view the Court of Appeals ruling as a validation of second-parent adoptions.
"The statute doesn't allow for second-parent adoptions," Howell said. "I stand firm on that."
Several conservative legislators say they are concerned that judges seem to be creating adoption laws.
"The effect of this is that adoption policy can now be set by our district court judges," said state Rep. Paul Stam, a Wake County Republican and a lawyer. "All people have to do now is find one district court judge who will do what they want. That's the lowest common denominator adoption policy."
State Sen. Jim Forrester, a Gaston County Republican, said it might be time for legislators to explicitly tell judges what kind of families can adopt children.
Forrester, who is against gay adoptions, said judges are crossing the line and becoming advocates instead of arbiters.
Short of a law change, the issue will likely remain unresolved.
The state Supreme Court isn't obligated to weigh in even if Jarrell requests it.
Judges, who are elected, have broad discretion to interpret and rule on laws. This often leads to very different decisions rendered in similar cases across the state.
Families can shop for a judge they think will be sympathetic.
Adoptions can be granted by any clerk of Superior Court or District Court. For some unmarried couples, securing parental rights is worth a drive to Durham or Orange county.
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