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

4th consecutive poll shows majority of Texans support either civil unions or gay marriage

The 2010 Texas Lyceum poll was released Tuesday, and for the second straight year, more than half of respondents said they support some form of legal relationship status for same-sex couples — whether it be civil unions or marriage.

According to the poll of 725 adult Texans from Sept. 22-30, 24 percent support civil unions, 28 percent support same-sex marriage, and 40 percent oppose both civil unions and gay marriage. That means a total of 52 percent support some form of relationship recognition, with 8 percent apparently not responding to the question.

This support for relationship recognition is actually down from the 2009 Lyceum poll, when 57 percent said they supported either marriage or civil unions, and only 36 percent opposed both.

But it marks the fourth consecutive statewide poll to show that a majority of Texans support either civil unions or marriage.

As Texas Politics Project Director Jim Henson put it in February: “This seems to be rapidly becoming not a question of what’s in public opinion. What’s in public opinion is becoming kind of a settled issue. Now the question is one of leadership and politics.”

—  John Wright

7 gay couples sue Montana over equal protection

The ACLU of Montana may have found a way to force states like Texas that have outlawed same-sex marriage to provide rights to gay and lesbian couples.

Although a decision has not been reached in the Prop 8 trial in California, the defense’s inability to produce any evidence or credible witnesses in that case may have emboldened the ACLU to sue on behalf of seven Montana couples.

The couples in the Montana suit aren’t pursuing the right to marry. They simply want the state to provide their families with the same protections opposite-sex couples enjoy.

The lawsuit claims Montana violates its own state constitutional guarantees of rights like privacy, equal protection and due process. The suit seeks equal rights through domestic partnerships.

By this suit, Plaintiffs do not seek the opportunity to marry nor do they seek the designation of “marriage” for their relationships. … Plaintiffs simply seek the same opportunity to obtain the statutory protections and obligations that are offered by the State to different-sex couples and their families through the legal status of marriage.

One of the plaintiffs describes her experience of being denied access to her former partner’s remains and her employer denying bereavement leave.

On their eighth anniversary, Christmas Day in 1996, Mary’s former partner was killed in a tragic accident on Lone Peak, involving an avalanche control explosive. Although Mary and her former partner had, like Stacey and Mary have, taken legally available steps to try to protect their relationship, Mary found herself powerless in a number of essential ways following her former partner’s death.

Grief-stricken after the accident, Mary was denied access to her former partner’s remains, as the coroner explained that she had no legal relationship to her partner. Big Sky Ski Resort refused to give Mary bereavement leave. Because Mary’s former partner did not leave a will and the state law that protects spouses in the event of intestacy could not apply, the family of Mary’s former partner was able to take almost all of the partner’s possessions, including half of the balance of a mutual fund account to which the couple had jointly contributed. The family also received the partner’s Worker’s Compensation Death benefits — money that by law goes to spouses, but not to the domestic partners of committed, intimate, same-sex couples. In addition, the family, unlike Mary, was able to seek damages against the ski resort through a wrongful death suit, a legal recourse that was not available to Mary even though she had been in a committed, intimate relationship with her partner for eight years.

The Texas law goes even farther than the Montana anti-gay law. The Texas amendment prohibits anything “similar to or identical marriage.” But doesn’t that actually make all marriage illegal in Texas?

—  David Taffet

U.S. Labor Department redefines ‘family’

New definition could benefit 100,000 children including those with same-sex parents and whose parents are in the military

Hilda Solis Guest Columnist

It’s been 17 years since Congress passed the Family and Medical Leave Act, or FMLA — groundbreaking legislation that allows parents to take unpaid time off from work to care for their children.

Since then, thanks in large measure to technology, work has changed. And as a result, workers have changed, often at warp speed. But what many have been slow to recognize is the fact that “families” have been changing for a very long time. Well, the Obama administration took a major step in recognizing that change last month when the U.S. Department of Labor clarified the definition of “son and daughter” under the FMLA.

Our interpretation ensures that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. We’ve done so because the realities of who is a “mother” and who is a “father” — and new, important and responsible concepts of “parenthood” — simply demand it, at home and at work.

It’s called in loco parentis, a Latin phrase and legal doctrine meaning in the place of a parent. When applied to the new realities of work and family, it means all employees who have assumed the responsibility for parenting a child, whether they have a biological or legal relationship with the child or not, may be entitled to FMLA leave.

Consider the case of Nazanin Meftah and her partner, Lydia Banuelos, a lesbian couple in Tucson, Ariz. Meftah developed medical complications after the birth of the couple’s children in 2007 and 2009.

Despite a clear need and obvious relationship to the children, Banuelos was denied unpaid leave both times by her employer. She wasn’t able to care for the kids because she was not a biological parent or legal guardian.

I had the chance to meet Ms. Meftah, and her story is sadly as common as it is compelling. The Williams Institute at the UCLA School of Law estimates that more than 100,000 children growing up in same-sex families could benefit from this simple, but important action.
The Labor Department’s interpretation of the FMLA makes clear that children can get the support and care they need from the people who love them and are responsible for them.

This is certainly a win for LGBT families, and recognizes the importance of a partner who shares in the parenting of a child in a same sex relationship.

But it’s also a win for “Tia” (Spanish for aunt), who steps in to care for her young nephew when his mother has been called to active military duty, or a grandmother who takes responsibility for her grandchild.

We know that family-friendly policies and laws like the FMLA aren’t “niceties” but rather necessities that contribute to the well-being of all families and a better bottom line for employers. No further interpretation of that is required.

Hilda L. Solis is the U.S. Secretary of Labor.

This article appeared in the Dallas Voice print edition July 9, 2010.

—  Michael Stephens