The Christian Action League filed an Amicus Brief on this case
By L.A. Williams, Correspondent
Christian Action League
RALEIGH — Homosexual couples venturing to Durham County to circumvent adoption laws will no longer have that option thanks to a North Carolina Supreme Court ruling issued Monday that closes the door on illegal “second parent” adoption.
The case, Julia Catherine Boseman v. Melissa Ann Jarrell, involves the North Carolina General Assembly’s only openly homosexual senator and her former partner, who gave birth to a son via artificial insemination from an unknown sperm donor while the two were living together in 2002. Three years later the women found a judge in Durham County willing to grant Boseman a type of adoption that is not a part of state adoption statutes. The next year they parted ways and have since battled over custody of the child, who is now 8 years old.
While lower courts upheld the Durham County decree and granted Boseman joint custody, the state’s High Court, by a margin of 5-2, ruled the adoption void ab initio (from the beginning). However, the Supreme Court opinion also determined that Jarrell had acted “inconsistently with her paramount parental status” and therefore allowed the lower court’s custody ruling to stand.
“Even though Jarrell didn’t accomplish her goal regarding custody of her son, this case is a victory for the family and for the state of North Carolina, where lawmakers have made clear their intent regarding adoption and the formation of stable families best suited for child-rearing,” said the Rev. Mark Creech, executive director of the Christian Action League. “District Court judges tempted to bend the rules and circumvent the law to please homosexual activists need to know that this will not be tolerated in our state.”
The Christian Action League had joined the North Carolina Family Policy Council, the American College of Pediatricians, NC4Marriage and the Christian Family Law Association in filing an amicus (friend of the court) brief on the case showing how the District Court “ignored the plain wording” of the state’s adoption statutes and “overstepped its authority” to allow “unmarried cohabitating couples to do indirectly what they cannot do directly — adopt a minor child.”
Similarly, the High Court, in its opinion written by Justice Paul Newby, ruled that “Adoption is a statutory creation. Until the legislature changes the provisions of Chapter 48, we must recognize the statutory limitations on the adoption decrees that may be entered.”
In Chapter 48, N.C. Statutes allow for three kinds of adoption: direct placement, agency adoption and stepparent adoption. In the first two, the rights and duties of the biological parent are terminated as part of the adoption. In the final one, the adopting parent must be the spouse of the child’s parent. None of these apply to the Boseman/Jarrell situation. Therefore, the Supreme Court ruled that the adoption court did not have subject matter jurisdiction in the case, because Boseman was seeking a type of adoption not included in North Carolina law.
In attempt to circumvent the law regarding adoption, Jarrell had signed a waiver to indicate that she was willing to have her son adopted by Boseman while retaining her own rights and duties to the child. Because no such “second-parent” adoption exists in state law, the Division of Social Services could not index the adoption, so the adoption court had ordered that the court clerk simply keep the case file in its records.
But Justice Newby pointed out in the N.C. Supreme Court ruling that county level judges can’t simply set their own rules.
“The record shows that this new form of judicially-created adoption may have been
available only in Durham County and not available in the other counties of North Carolina. If our uniform court system is to be preserved, a new form of adoption cannot be made available in some counties but not all,” Newby wrote. “This Court has the responsibility to ensure that the law is applied uniformly in all our counties.”
The ruling went further to say that because the adoption decree is void, Boseman is not legally recognized as Jarrell’s child’s parent, which makes the custody dispute one between a parent and a third party. However, citing prior case law, the Court ruled that “when a parent brings a non-parent into the family unit, represents that the non-parent is a parent, and voluntarily gives custody of the child to the non-parent without creating an expectation that the relationship would be terminated, the parent has acted inconsistently with her paramount parental status.”
So, according to the ruling, Jarrell’s failure to get the joint custody ruling overturned was based not on the illegal adoption, but on the fact that she behaved as if Boseman actually were her son’s parent.
“Because defendant has acted inconsistently with her paramount parental status, the trial court did not err by employing the ‘best interest of the child’ standard to reach its custody decision,” the Supreme Court ruled. “Thus we reverse the Court of Appeals’ decision regarding the validity of the adoption decree and affirm as modified its conclusion leaving undisturbed the trial court’s custody award.”
Attorney Tami Fitzgerald, who authored the amicus brief for the Christian Action League, said she was disappointed that the court didn’t go further to address the custody issue.
“There have been a number of faulty decisions out of the Court of Appeals dealing with custody of non-biological children of homosexual partners, and the Court chose not to challenge those decisions at this time,” she said. “We hope that will change in the future. It is unprecedented that a non-biological party should gain custody rights simply by being the homosexual partner of the child’s biological parent.”
The Rev. Creech said this part of the ruling is unfortunate and illustrates the “grave legal concerns that arise when a parent facilitates a relationship between her child and a third party without full knowledge of the ramifications.” He said it is these nebulous relationships that the state seeks to prevent with its specific adoption laws that favor married couples and promote child-rearing in homes with two married parents of opposite gender.
“Childrearing studies have consistently shown that children are more likely to thrive emotionally, mentally, and physically in a home with married parents of differing sexes. The veracity of this principle remains unrefuted,” asserted the amicus brief filed by the CAL and other organizations, citing at least a half-dozen studies. “These scientific results rest on the intuitive and well-supported principle that children benefit from close, daily interaction with both a male and a female.”
Not surprisingly, studies have also shown that same-sex parenting has deleterious effects on children. For example, children raised by same-sex couples are more likely than children raised by opposite-sex couples to initiate sexual activity at earlier ages, to have more sexual partners, and to experiment with homosexual behavior. [1]
“We’re pleased to see the N.C. Supreme Court uphold state laws that support the necessary and integral role that the traditional family plays in society,” said the Rev. Creech. “Continuing to allow courts like the one in Durham to weave a tangled legal web around children who, by no fault of their own, are caught up in efforts of homosexual couples to create an illusion of normalcy where there is none, is detrimental to the children and to our state.”
According to media reports, courts in both Durham and Orange counties have issued hundreds of these second-parent adoptions.
“I’m sure there are other estranged homosexual partners who had obtained these illegal adoptions,” Fitzgerald said. “Because of this ruling, biological parents now have a reason to go to court and nullify the adoptions.”
However, unless one party or the other wants relief from the court, no legal action is likely.
Two Supreme Court justices opposed the majority opinion in the Boseman-Jarrell case. Justice Patricia Timmons-Goodson dissented on the grounds that Jarrell failed to appeal the adoption within set time limits. Justice Robin E. Hudson dissented for similar reasons claiming that the “adoption decree was not void, but merely voidable and subject to the statutory time limits for appeal.”
Resources:
[1] Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter, 66 American Sociological Review 174-79 (2001).