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Same-Sex Adoption

Since the United States Supreme Court ruling in 2015 legalized same-sex marriage, there have been massive advancements in the area of adoption rights for same-sex couples across the country. Stepparent adoption, previously only available in North Carolina to married couples, is now an option for many same-sex couples. However, significant legal hurdles still exist in as many ways as there are in which to build a family. If you are facing a same-sex adoption or family law issue, it is important to have a skilled family law attorney in your corner advocating for your rights. Please contact Arnold & Smith, PLLC today for a consultation.

Adopting your same-sex partner’s legal/biological child

Second-parent adoption, which allows for adoption without terminating any of the “first” parent’s parental rights, is not available to straight or same-sex married couples in North Carolina.

However, stepparent adoption is an option for married same-sex couples here. It applies to the married spouse of the parent of a child who is not the child’s legal parent. Stepparent adoption does terminate the child’s relationship to their biological or previously adoptive parent and transfers all their parental rights to the stepparent. However, it usually requires the consent of the other biological parent.

Requirements for Stepparent Adoption

Primary Residence or Good Cause

Under North Carolina law, a stepparent may petition to adopt a stepchild if:

  1. The spouse who is the parent has physical and legal custody of the child
    • And the spouse’s home has been the child’s primary residence during the six months immediately before the filing of the adoption petition
  2. The parent-spouse is incompetent or deceased but had physical or legal custody of the child before he or she died or was declared incompetent
    • And the spouse’s home was the child’s primary residence for the six months prior
  3. If the above two conditions are not met, a court can allow a stepparent to file an adoption petition if “good cause” can be shown. This covers extenuating circumstances in which immediate action is in the best interests of the child.
Consent

Besides meeting one of the requirements above, a stepparent adoption petition must have the consent of the child if they are 12 or older (unless the court determines the child’s wishes are not in his or her own best interests), and usually, the consent of both parents.

If the non-spouse parent will not voluntarily give consent to the stepparent adoption, this can pose a significant legal hurdle if one of the following exceptions cannot be shown.

You do not need consent from the non-spouse parent for a second-parent adoption in North Carolina if that parent:

  1. Had his or her parental rights taken away by court order
  2. Is deceased
  3. Relinquished his or her rights as to agency for the child’s adoption
  4. Did not respond within 30 days of being served with notice of the adoption proceeding
  5. Disavowed paternity, or did not properly claim paternity
  6. Did not let the child live with him and hold them out as his own before the adoption petition was filed
Notice

North Carolina law requires that you give the non-spouse parent notice of your stepparent adoption petition but allows a petitioning spouse to publish this notice in local newspapers if the second parent is unknown.

For some same-sex couples, there may have been an egg or sperm donor or gestational carrier in addition to contraception by artificial insemination. For these couples, this raises additional issues of consent and notice. However, state statutes addressing parentage for children conceived through artificial insemination assume that the child is being raised by a husband and wife. The law is unclear on what factors a court must consider in making a judicial determination on the right to this notice for an egg or sperm donor or gestational carrier.

If a petition for stepparent adoption is contested, a formal hearing will be held to determine if the adoption is in the child’s best interests and that the stepparent is a suitable parent.

Adopting an “outside” child with your same-sex partner

Adopting a child to whom neither partner is biologically or legally related can be done through the state’s public agency or a private adoption agency.

North Carolina law is silent as to fostering by LGBT parents. Married same-sex couples can petition for joint adoptions in North Carolina, but some private agencies do not let same-sex couples adopt jointly—although they will let an LGBT individual petition for a solo adoption.

The ways in which a couple can build their family are so many and diverse that it is difficult to give a comprehensive analysis of everything that could affect a same-sex couple’s adoption petition. All the state-level legal hurdles make it important to have the help of an experienced family law attorney to help protect the rights of you and your family if you are facing a same-sex adoption issue. The family law attorneys at Arnold & Smith, PLLC are experienced in navigating adoption proceedings and are dedicated to ensuring the rights of same-sex partners and their families. Please contact us today for a consultation.