Court Indirectly Affirms Homosexual Adoption

Special Report - August 21, 2009

After conceding that “same-sex adoption” does not exist in North Carolina law, a three-judge panel of the North Carolina Court of Appeals has affirmed that a woman is a legal parent of the biological child of her former partner. The case, Boseman v. Jarrell, involved a custody dispute between State Senator Julia Boseman (D-New Hanover) and Melissa Jarrell, over Jarrell’s six-year old son, who was conceived through artificial insemination in 2002 and later adopted by Boseman. According to the ruling, both women “participated in the day-to-day care of the child,” who called Jarrell “mommy,” and Boseman “mom.” After the women separated in 2006, Boseman sought joint legal custody of the child, and a bitter custody battle ensued. Jarrell contested the validity of the adoption, asking a district court to declare it void. Part of her argument against the adoption was that North Carolina law does not allow “same-sex adoption.” In 2008, a district court upheld the validity of Boseman’s adoption and granted her joint legal custody of the child with Jarrell, who appealed to the Court of Appeals.

In the unanimous decision issued August 18, the appeals court upheld Boseman’s adoption of the child, declaring her a “legal parent.” The decision, which was written by Judge Wanda G. Bryant, noted that North Carolina law does not include the phrase “same-sex adoption,” but argued that the women’s homosexual relationship was not an issue in this case. “While the factual circumstances of the parties’ relationship is discussed in the order granting the waiver, no mention of the parties sexual orientation is contained in the decree, which merely notes that the petitioner (Boseman) was a ‘single female,’” Judge Bryant wrote. “Thus, the adoption here was not explicitly a same-sex adoption; it is better characterized as a direct placement…” The decision defines “direct placement of a child” as an adoption where “a parent or guardian…personally select[s] a prospective adoptive parent,” sometimes with third-party assistance and sometimes on their own.

The appeals court addressed the controversial nature of their decision in the ruling. “We note that both parties have made extensive arguments related to the same-sex nature of their former relationship and whether our State and its agencies sanction adoptions by same-sex couples,” Bryant wrote. “While acknowledging that such issues are matters of great public interest and of personal significance to Boseman and Jarrell, we emphasize that the specific nature of the parties’ relationship or marital status was not relevant to resolution of the instant appeal. The same result would have been reached had the parties been an unmarried heterosexual couple. While Chapter 48 does not specifically address same-sex adoptions, these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s ‘need, interests, and rights.’”

This is not the first time the North Carolina Court of Appeals has dealt with the issue of homosexual adoption. As we previously reported, in May 2008, the appellate court issued a landmark decision in Mason v. Dwinnell, another case involving a custody dispute between a lesbian couple, who used in vitro fertilization to have a child, and later ended their relationship. The appeals court granted joint legal custody of the child to the biological mother and her estranged lesbian partner. The case was significant in that it represented the first time an appellate court in North Carolina recognized custodial rights for non-parent homosexual partners.

“This latest decision by the North Carolina Court of Appeals is another example of the power of the court to make marriage and family policy in our state,” said Bill Brooks, president of the North Carolina Family Policy Council. “Because North Carolina law does not explicitly prohibit adoption by homosexual individuals, the door is open for homosexuals to adopt children as single individuals. Every time one of our courts issues a decision like this one, it that much easier for homosexual activists to gain what they ultimately seek—to create a new norm for sexuality, gender and family.”

Copyright © 2009. North Carolina Family Policy Council. All rights reserved.

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