Raleigh News & Observer
A state senator's custody fight with her former domestic partner may lead to an expansion of a little-used legal procedure under which gays and lesbians in North Carolina have been adopting children.
A three-judge panel of the state Court of Appeals this week unanimously upheld Sen. Julia Boseman's 2005 adoption of her partner's child , entitling Boseman to joint custody. Boseman, a Wilmington Democrat, adopted the child in Durham because it is one of only two counties in the state where judges have allowed such adoptions.
"Now I think it's very clear that if a couple of the same sex choose to go out and adopt the child ... that homosexual couples can adopt children," said Jim Lea, a Wilmington domestic law specialist who was one of Boseman's attorneys in the custody case. "To say that a couple should not be able to adopt a child because they're gay, on that reason alone, is just plain wrong."
State law does not specifically allow or prevent adoptions by gays or lesbians. Boseman's adoption, as well as a couple hundred others like it over the past five years, was possible because a handful of judges waived certain provisions of the state law governing adoption.
To try to win full custody of the child, Boseman's former partner, Melissa Jarrell, argued that a gay person cannot adopt his or her partner's child.
John M. Martin, a Greenville lawyer who represented Jarrell, said the judges overstepped their authority by granting the adoptions. That amounts, he said, to judges writing laws -- a responsibility that belongs to the legislature.
"If I look in my crystal ball, it certainly is fraught with potential confusion about the availability of these types of adoptions in North Carolina," he said. "It is an issue, as we argued to the Court of Appeals, that really should be addressed by the legislature."
The Democrats who control the state House and Senate, though, have been reluctant to tackle legislation addressing gay rights, including a push by Republicans to pass a constitutional amendment buttressing a state law that says gay marriage is illegal in North Carolina.
Meanwhile, the Court of Appeals ruling left some ambiguity, upholding Boseman's adoption while also saying that the means to obtain it may have been contrary to state law.
Deciding on a child
Boseman and Jarrell, a former softball coach at UNC-Wilmington, began a relationship in 1998 and soon discussed having a child, according to the opinion. In 2002, Jarrell, who was artificially inseminated, gave birth.
The child, who is not named nor described in the court opinion, called Jarrell "Mommy" and Boseman "Mom" and was described as "happy, outgoing, respectful, intelligent, very athletic, friendly, delightful and kind to others."
In 2004, Boseman and Jarrell began exploring the possibility of having Boseman adopt.
That same year, Boseman became the first openly gay person elected to the state Senate. In 2005, Boseman and Jarrell went forward with the adoption in Durham.
State law creates several types of adoptions. In cases where a stepparent is adopting a child, the adults must be married. In "direct placement" adoption, the biological parents are required to give up their parental rights. That requirement is intended to ensure that parents giving up their children are aware of the consequences of their actions, according to the opinion.
While Boseman's adoption would seem to have fallen under the stepparent option, that was not possible because Boseman and Jarrell could not legally marry in North Carolina.
So Boseman adopted the child under the "direct placement" option. Durham District Court Judge Marcia Morey granted Jarrell a waiver to the state law that would have required her to give up her rights as a parent.
The Appeals Court ruled that it was appropriate for Morey to waive the requirement and allow the adoption to proceed. The court opinion also said that judges should decide adoption cases in the best interest of the child.
Morey declined to comment on the specific case but said a judge is obliged to consider what is best for the child.
At least four judges in Durham have granted similar waivers, she said. The adoptions have also been granted in Orange County.
"The children benefit immensely," said Sharon Thompson, a Durham lawyer who has specialized in aiding gay and lesbian couples with adoptions and represented Boseman in hers. "Why should this child be treated any differently because of the marital or gender status of their parents?"
Tami Fitzgerald, a staff attorney for the Christian Action League of North Carolina, a Raleigh public policy group, said the ruling is an attempt to legitimize same-sex marriage.
"We shouldn't set up legal frameworks that are not geared toward the idealization and the optimization of children," she said. "It deconstructs what we know as family by taking the emphasis of marriage as a basis for family."
Ian Palmquist, executive director of Equality North Carolina, a group that advocates for gays and lesbians, said the ruling is an important step to protect children.
"All of the major medical organizations and the scientific research that's been done supports the fact that same-sex parents can raise children who grow up to be just as healthy, physically and emotionally, as children being raised by opposite sex couples," Palmquist said. "The fact is that there are thousands of children in our state who are being raised by same sex couples and they deserve to have the same protections that children raised by married couples do."
In 2005 and 2006, Boseman and Jarrell's relationship began to sour. The ensuing custody case between them became a much-publicized and bitter dispute that included Jarrell hiring a private investigator to spy on her former partner. During a custody hearing, Boseman acknowledged smoking marijuana in 2003.
The custody dispute led to the case that went before the appeals court.
State law makes it difficult to void adoptions, so Jarrell argued the adoption was never valid. The Appeals Court found, though, that Jarrell herself initially sought the adoption.
"While [the adoption law] does not specifically address same-sex adoptions, these statutes do make clear that a wide range of adoptions is contemplated and permitted, so long as they protect the minor's 'needs, interests, and rights,'" wrote Judge Wanda Bryant. Chief Judge John C. Martin and Judge Cheri Beasley concurred.
Even in affirming the adoption, the opinion leaves open a possibility that it never should have happened.
"We conclude that the adoption court acted within its authority in granting the direct placement adoption decree, and that the grant of waiver of certain provisions was, at most, erroneous and contrary to law," Bryant wrote.
That sentence will likely lead to many interpretations, Martin said.
"If the actions of a court were contrary to law, they should not be upheld," he said.
Because the opinion was unanimous among the three judges, Jarrell would have to ask the state Supreme Court to hear an appeal. Such special petitions are rarely granted. Martin said Jarrell has not decided whether to appeal.