Christian Family Law Association

NORTH CAROLINA:

Same-sex adoption: Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010)  - Boseman and Jarrell, female domestic partners since 1998, desired to have a child. Jarrell gave birth, by artificial insemination in 2002. Both parties participated in the day-to-day care of the child. In 2005, Jarrell filed with the Durham County District Court Clerk a Motion for Waiver of Statutory Provisions by Biological Mother, which requested that the Court waive the statutory provisions established for the benefit of biological parents stating that the consent of the biological mother should contain an agreement to terminate all her parental rights. In August 2005, the District Court granted Jarrell's motion. Jarrell filed a Consent to Adoption by Parent Living with Petitioner, and an adoption decree was granted that preserved Jarrell's status as biological parent. The parties separated and Boseman commenced an action for custody of the child. Jarrell sought to have the adoption set aside. The trial court denied Jarrell's motion to set aside and granted Boseman joint custody of the child. The North Carolina Court of Appeals, upholding the same-sex adoption, held that the trial court acted within its discretion when it granted the direct placement adoption decree. Boseman was upheld as a parent of the child. Jarrell filed a petition for discretionary review to the North Carolina Supreme Court. CFLA filed an amicus brief. The Supreme Court held the trial court lacked subject matter jurisdiction to grant an adoption that was not permitted by North Carolina's adoption laws, therefore the attempted adoption by an unmarried partner in a same-sex relationship was void ab initio.  

Federal:

Virginia:

Abortion: Richmond Medical Center for Women v. Herring, 2009 WL 1783515 (C.A.4, Va.). A Virginia statute that criminalized "partial birth infanticide," by prohibiting the killing of a human infant who had been born alive, was not facially unconstitutional for imposing an undue burden on a woman's ability to have an abortion using the standard dilation and evacuation (D&E) method. The possibility of the rare circumstance where a standard D&E would accidentally become a prohibited intact D&E did not justify rendering the statute invalid for all other circumstances. In addition, the statute clearly delineated the rare circumstances in which a doctor would incur liability, enabling a doctor to perform a standard D&E without fear that the accidental emergence of the fetus to an anatomical landmark would present the doctor with a choice between criminal liability or care that the doctor believed would not be in the best interest of the patient.

OTHER JURISDICTIONS:

South Carolina:

UCCJEA: Russell v. Cox, 2009 WL 1109891 (S.C.App.), decided April 27, 2009 - Ex-wife, a resident of Florida, brought a South Carolina action seeking registration of a Georgia divorce decree and custody Order and modification of custody and visitation provisions of order. Although ex-husband had lived in South Carolina for several years, the South Carolina appellate court found, in a case of first impression, that ex-husband "presently resided" in Georgia as that term is defined in the UCCJEA, and therefore the South Carolina trial court did not abused its discretion in determining that Georgia was a more convenient forum. The ex-husband had a Georgia driver's license, owned property in Georgia, and filed taxes in Georgia. The South Carolina appellate court noted that the trial court could have exercised jurisdiction to make a child custody determination under the UCCJEA, but its declining to do so was not an abuse of discretion.

 New York:

 In re Adoption of Sebastian, 879 N.Y.S.2d 677 (Sur. Ct. 2009), A same-sex couple had legally married in the Netherlands and came to live in New York. The couple decided to have a child. An egg from one was fertilized by a sperm donor and implanted into the other. After the child was born, a birth certificate was issued, naming the gestational mother, not the biological mother, as the parent. The biological mother then sought to adopt the child. In a lengthy opinion, the New York Surrogate Court acknowledges that although statutory and coomon law continue to expand to encompass an ever-changing world of parental relationships, artificial reproductive technology continues to outpace the law. The court ultimately decided that adoption of the child by the biological mother afforded the best protection of the biological mother's rights. 

Comment

The case, for several reasons, seems problematic. In some jurisdictions, adoptions by lesbian couples is prohibited. Would that mean the biological mother could not have a parent-child relationship with her own child. Further, since the birth mother was not the biological mother, why was she named as the mother of the child on the birth certificate? When both parties knew the true biological mother was not the birth mother, the law should be clear that the biological mother be listed as the mother of the child. Moreover, why was it necessary for a biological mother to file an adoption proceeding to adopt a child that when she is truly the biological parent? We don't generally require biological fathers to adopt their own children once they are determined to be the true father. A simple action for legitimacy or paternity should be sufficient to establish the parent-child relationship.