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Legal Group: NC Adoption Laws Unconstitutional

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(Photo by Brendan Smialowski/Getty Images)

(Photo by Brendan Smialowski/Getty Images)

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CHARLOTTE, N.C. (AP) — A civil liberties group sued North Carolina on Wednesday to change state adoption laws that they argue unconstitutionally prevent unmarried couples from adopting their partners’ children.

The American Civil Liberties Union of North Carolina filed the lawsuit in federal court in Greensboro, N.C., on behalf of six North Carolina same-sex couples who support so-called second parent adoptions.

ACLU legal director Chris Brook said North Carolina’s highest court in 2010 banned second parent adoptions for unmarried couples, whether straight or gay. That ruling prevents those couples from jointly adopting children.

But the ACLU lawsuit focused on same-sex couples.

It said second parent adoptions are the only way a North Carolina family with gay or lesbian parents can ensure that both parents have a legal relationship with their child.

“Children who are prevented from having such a legally recognized relationship with both parents suffer numerous deprivations as a result, including exclusion from private health insurance benefits, public health benefits, veterans’ benefits, disability benefits and social security benefits,” the lawsuit said.

They also face uncertain futures about their ability to continue their relationship with their second parent if something should happen to their legal one, Brook said.

“We think that there should be a uniform policy for conducting adoptions in the state of North Carolina that focus entirely on the best interest of the child,” he said.

The lawsuit names three state judges as defendants, including John W. Smith, director of the North Carolina Administrative Office of the Courts. It said Smith is responsible for “promulgating rules, policies and procedures to control or advise N.C. clerks of county courts who apply the state’s adoption laws when considering whether to accept or reject petitions for adoptions.”

N.C. Administrative Office of Courts spokeswoman Sharon Gladwell said her agency doesn’t comment on issues when litigation is pending.

“This is the first that we have heard of it. The North Carolina Administrative Office of the Courts has not yet been served with this lawsuit, nor has NCAOC been involved in any conversations regarding this matter,” she said.

The lawsuit said there’s no basis for North Carolina to “automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents.”

While many other states grant second parent adoptions in cases when they are in a child’s best interest, North Carolina’s laws as “authoritatively construed” by the state’s high court do not, the lawsuit said.

It was referring to the 2010 case involving former State Sen. Julia Boseman’s adoption of her former domestic partner’s biological son. The General Assembly’s first openly gay member, Boseman was elected in 2004 and served until the end of 2010.

A Durham County district judge had allowed Boseman to adopt her partner’s biological son. But the state’s highest court voided the adoption because the judge had waived a requirement that her partner had to give up her parental rights in the process.

Associate Justice Paul Newby wrote for the high court 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.

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

The high court’s ruling set the stage for the ACLU’s lawsuit. Under North Carolina law, single parents and married couples can adopt a child. So can a stepparent who adopts their partner’s previously adopted or biological child.

“But unmarried couples cannot both get parental rights,” Brook said.

And that has become a big issue with gay couples. When same-sex couples want to adopt, only one partner in the relationship can file the adoption paperwork.

That creates problems for the other partner. They don’t have the same parental rights as the adoptive parent.

It’s a vexing issue for same-sex couples. Adoption laws vary from state to state. But courts in 10 states, including California, New York, and Pennsylvania, and the District of Columbia, have held that their adoption statutes permit second parent adoptions because they’re in the best interest of the children.

One of the plaintiffs in the ACLU lawsuit, Lee Knight Caffrey, said she’s worried that her family could be torn apart if she suddenly died.

Caffrey is the biological mother of two young children. She has been with Dana Draa for seven years.

“We planned to have our children together…She attended every prenatal appointment. She was with me at the birth of our children. She has changed countless diapers. She spent hours rocking each of our children and sharing in the responsibilities and joys of motherhood,” said Caffrey, 36, a Charlotte attorney.

Without adoption, Draa faces potential problems caring for their children, especially when Caffrey is out of town on business.

“I’m worried if one or two of our children have a medical emergency, Dana would not be able to make any immediate decisions about their care and well-being because she has no authority to do so in the eyes of the law. A doctor or attending physician could very well challenge her authority to do so. And if I’m hours away or unreachable, that’s a terrifying situation,” she said.

(© Copyright 2011 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

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