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Frederick Hertz

Frederick Hertz

Posted: December 23, 2010 07:11 PM

A recent decision by the North Carolina Supreme Court appears to have invalidated potentially thousands of second-parent adoptions by same-sex couples (mostly lesbian couples) in that state. This is one of the worst examples of how a particularly nasty divorce can lead to bad court decisions, which in turn can harm the lives of many other children and their parents.

Here is the story: when a lesbian has a child by artificial reproductive methods (i.e. sperm donor), she is the sole legal parent. If she has a partner and they are living in a state that doesn't have same-sex marriage or other form of legal partnership, the legal procedure for adding her partner as a parent is called a second-parent adoption. Unlike a conventional adoption where one parent is giving up rights to an adoptive parent, in this instance the legal parent does not give up parentage, but rather, a second legal parent is added. This process has great benefits for the child and the parents -- it provides certainty in case of a break-up, and it also provides for Social Security and other benefits for the child from the second parent, and puts the second parent clearly on the hook for child support if there is a dissolution.

Unfortunately many states do not have clear appellate decisions authorizing this process, but even in such states many local judges have been willing to grant such adoptions. Many of those kids have been living with their two parents for more than a decade, with everyone believing that the legal status of the parent-child relationship was not in question. Now, in a heartless decision, the North Carolina justices have ruled that this procedure is not authorized in their state. And, making matters worse, they are applying their ruling retroactively, canceling the adoptions that were previously seen as having been properly granted by local courts.

Most state courts facing the same question have approved second-parent adoptions, and in the few states where courts have ruled otherwise (Connecticut and Colorado, for example), the state legislatures quickly fixed the problem. However, that is not likely to happen in the conservative legislature of North Carolina.

The only silver lining in the court's decision is that the justices ruled that the non-legal parent would have a right to seek reasonable visitation and even shared custody of her child, on the grounds that this would be in the best interest of the child. Thus, the second mom won't lose her entire relationship with her child. But still, this decision could lead in other instances to a denial of custody and visitation, and it definitely would lead to a loss of other public and private benefits. In some situations it also might enable a non-legal parent to escape having to pay child support obligations.

There are many lessons to be learned from this tragic story, but the one that has universal application is that extreme positions taken by angry parents in the midst of a divorce don't just hurt their own immediate family -- they can lead to court decisions (for both straight and gay law issues) that harm many others as well. For more on the overall situation that same-sex couples face, check out www.nclrights.org