Arkansas Supreme Court grants visitation rights to non-biological co-mom

Justice Donald L. Corbin

In a 5-2 decision, the Arkansas Supreme Court ruled on Feb. 17 that a non-biological lesbian co-parent should be granted visitation rights.

In the case of Bethany v. Jones, the high court upheld the ruling of a lower court, even though Arkansas law forbids adoption by cohabiting same-sex couples. The decision was written by Associate Justice Donald L. Corbin.

The decision lists these as undisputed facts:

Bethany and Jones were same-sex partners from 2000 until 2008.

In 2003, the parties purchased a home together, with both of their names listed on the mortgage.

In 2004, the parties began to take steps toward having a family. A male friend of Jones’s agreed to donate sperm. Bethany agreed to carry the child because Jones was experiencing some health issues, including reproductive problems.

Through the process of artificial insemination, Bethany became pregnant, and the minor child was born in 2005.

After the child’s birth, Jones stayed home with the child and her parents became the child’s grandparents. Bethany has no relationship with her family so they were not involved in the child’s care.

In 2008, the couple split up. At that time, they shared custody. But Bethany began a relationship with another woman who is also raising a child and she wanted to end Jones’ involvement and denied her visitation rights.

Jones’ filed for breach of contract. Bethany charged her former partner had no standing.

The court found Jones’ claims similar to that of a step-parent and decided that since they had planned to raise the child together at the time of birth and Jones had provided care for the child until the break up, she did have visitation rights.

—  David Taffet

N.C. high court voids lesbian lawmaker’s 2nd-parent adoption

GARY D. ROBERTSON | Associated Press

RALEIGH, N.C. — North Carolina’s highest court on Monday, Dec. 20 voided a state senator’s adoption of her former domestic partner’s biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.

The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell’s son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.

Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.

However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.

She and Boseman, North Carolina’s first openly gay member of the General Assembly, had been living together when Jarrell gave birth to Jacob in 2002.

The majority of justices let stand another lower court ruling allowing the two to have joint custody of the child, saying it would be in Jacob’s best interest for the women, who have been sharing parental responsibilities, to rear him.

Still, the ruling eliminates a method for same-sex couples to adopt and could raise legal questions about so-called “second parent” adoptions like this one. They have been granted in Durham and Orange counties in recent years, according to testimony and court documents.

“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.

For such two-parent adoptions to occur by parents of the same gender — granting inheritance and other rights to the child — same-sex marriage would have to be created in North Carolina or the adoption law would have to be changed, said Michelle Connell, a Winston-Salem lawyer and chairwoman of the family law section of the North Carolina Bar Association.

Several Christian groups filed briefs arguing the adoption was illegal, while law professors and the American Civil Liberties Union urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.

Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.

“The avenue is going to have to be changing the statute,” Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage.

Associate Justice Patricia Timmons-Goodson wrote in a dissenting opinion that Jarrell was barred from challenging the decree because she missed deadlines to do so. In a separate opinion, Associate Justice Robin Hudson said there was no explicit prohibition against or permission for a waiver like the one Jarrell received.

“The majority overlooks the interests of this child and promotes (Jarrell’s) rights over those of the child, in direct contravention of the law as written,” Hudson wrote in arguing for a Court of Appeals ruling earlier this year upholding the adoption.

Jarrell attorney Leslie Fritscher said her client was pleased with the adoption being voided but was still reviewing the ruling granting joint custody.

Lawyer Jim Lea, representing Boseman, said the senator is pleased that she will remain part of Jacob’s life but is unhappy with the adoption decision. “If you have two loving parents that want to adopt a child … one should not be forced to comply with North Carolina statute by terminating parental rights,” he said.

Boseman, a Democrat from Wilmington, was first elected to the Legislature in 2004. She didn’t seek re-election this year and leaves office at the end of this month.

—  John Wright