When U.S. District Court Judge Max Cogburn ruled in October 2014 that the ban on same sex marriage in North Carolina was unconstitutional, same sex marriage finally became legal within the state.That ruling was a massive step forward towards full equality for LGBT couples and families. But here we are, almost 3 years later, and North Carolina has not updated the state’s domestic statutes to reflect the reality of same sex marriage, and to offer protection to LGBT families.
Before the legalization of gay marriage in North Carolina, children could only be adopted by LGBT individuals, not couples, and there was no way for a same sex partner to adopt his/her partner’s biological or legal children.. Now, same-sex couples may adopt a child together as a married couple or, if one partner has a child from a previous relationship or via assisted reproduction, their spouse may adopt that child through a stepparent adoption.
It is important to bear in mind that North Carolina is not a state that permits ‘second parent adoptions,’ which would permit an adoption regardless of the couple’s marital status. Same-sex couples must get married and remain married for at least six months before the stepparent adoption process can begin.
Benefits of Stepparent Adoption
Being married to the biological or legal parent does not automatically give you parental rights, EVEN IF YOU ARE ON THE CHILD’S BIRTH CERTIFICATE!
Birth certificate statutes in North Carolina only give presumptive parental rights to the husband of the woman who gives birth, and presumptions can be overcome! So, the wife of the birth mother really does not fit comfortably in the currently existing law as a person who gets automatic parental rights. This situation is even more complicated for same sex male couples, since the presumptive rights of the gestational carrier (the woman who carried the child on their behalf), any known egg donor, and potentially some others also have to be addressed.
The good news is that same sex married couples now do fit comfortably (more or less) into North Carolina stepparent adoption statutes! Once your stepparent adoption is finalized, you may participate in decisions relating to the child’s upbringing or welfare, such as:
- Making medical decisions for them
- Deciding where they go to school and what religious faith (if any) they are raised in
- Equal rights to custody and obligations to support the child if you and the other parent split
Legally adopting your child also allows them to be covered by your health insurance and benefit from intestate inheritance rights if you die without a will. If your marriage ends or your spouse becomes incapacitated or dies, you will retain the right to seek custody and remain in the child’s life.
The Adoption Process for LGBT Parents
To complete a stepparent adoption in North Carolina, you must present several key documents like your marriage certificate and the child’s birth certificate.
If you used an anonymous sperm or egg donor, these parties usually waive their parental rights prior to the child’s conception when they donated at the bank or clinic. If you used a known donor, you will likely need that person to consent to the adoption.
For couples married less than 2 years and for children who are under 2 years old, a court report will be required, and that includes an application process and visits from a social worker. It feels a little awkward to have a social worker visit your home, but there are plenty of agencies out there that support LGBT families and try to make it as comfortable as possible.
So the only was that a non-biological./legal parent can get permanent and portable parental rights to the child they conceived with a same sex partner is to complete a stepparent adoption (or a PreBirth Order for male couples in certain circumstances).
If you are in a same sex relationship and you’re concerned about the stability of your parental rights, contact Haas Tharrington, P.A. for a free confidential consultation. We take pride in helping LGBT couples expand their families, and welcome the opportunity to help you with your parenthood goals.