Understanding Same-Sex Adoption Under North Carolina Law

Understanding Same-Sex Adoption Under North Carolina Law

In 2015, the United States Supreme Court legalized same-sex marriage, causing massive advancements in the adoption rights of same-sex couples across the country. One of the key advancements is the availability of stepparent adoption to same-sex couples. Previously, it was only available to married couples in North Carolina.

However, there are still several legal hurdles to building a family despite these advancements. This article will shed some light on same-sex adoption in North Carolina. If you are looking to adopt as a same-sex couple, having a family law attorney in your corner is crucial. Contact us at Waple and Houk for a consultation.

Can You Adopt Your Same-Sex Partner’s Biological Child?

You cannot adopt your same-sex partner’s biological child if it is a second-parent adoption. However, this is not a problem peculiar to same-sex couples alone. North Carolina is one of the states that doesn’t allow for second-parent adoption. This is because you have to terminate the first parent’s parental rights.

However, the law allows for stepparent adoption for same-sex couples. Stepparent adoption applies to the married spouse of a child’s parent who is not the child’s legal parent. This is because stepparent adoption does not end the child’s relationship with their biological parent or previously adoptive parent.

Also, the law transfers all their parental rights to the stepparent. But the other biological parent must give their consent. In simpler terms, if your partner has a child from a previous marriage or relationship, you can adopt the child as a stepparent as long as both biological parents consent to it.

What Are the Requirements for Stepparent Adoption?

Under North Carolina law, a person in a same-sex relationship can engage in stepparent adoption if:

• The spouse who is the parent has physical and legal custody of the child. In addition, their home must have been the child’s primary residence during the six months immediately before filing the adoption petition.
• The parent-spouse (the person in the same-sex relationship) is incompetent or deceased but had physical or legal custody before they died or were declared incompetent. Again, the spouse’s home must have been the child’s primary residence for six months before the death or incompetency.
• The above conditions are not met, the stepparent can only file for adoption if they show “good cause.” Usually, it covers extenuating circumstances where immediate action is required in the child’s interest.

How Consent Works

Aside from meeting the criteria for stepparent adoption, if the child is above 12 years or older, you need to obtain the child’s consent and that of both parents to adopt them. The court will only do away with getting the child’s consent if they determine the child’s wishes are not in their best interest.

If the non-spouse parent (the person not in the same-sex relationship) fails to give consent, it will hinder the adoption. The only way the court will do away with consent is if one of the following exceptions exists. The non-spouse parent:

• Had their parental right taken away by court order
• Is deceased
• Relinquished their right to the agency for the child’s adoption
• Fail to respond within 30 days of being served with notice of the adoption proceeding
• Disavowed paternity or did not claim paternity properly
• Did not let the child live with them or acknowledge them as their own before the filing of the adoption petition

Notice to the Non-Spouse Parent

North Carolina law stipulates that you notify the non-spouse parent of the stepparent adoption petition. If the non-spouse parent is unknown, the petitioning spouse will publish the petition notice in the newspaper. If the non-spouse parent contests the adoption, the court will schedule a formal hearing to consider the child’s best interests and whether the stepparent is a suitable one.

What About Adopting an “Outside” Child With Your Same-Sex Partner

If you and your partner desire to adopt a child that doesn’t belong to either of you, you need to go through the state’s public adoption agency or a private adoption agency. Note that North Carolina is silent on fostering by LGBT couples. However, married same-sex couples can petition for joint adoptions. But some private adoption agencies do not allow for joint adoption, only for solo adoption.

Book a Confidential Consultation With Waple and Houk Today!

It is difficult to give comprehensive information on the adoption rights of same-sex couples in this article. Even if the law seems to allow same-sex adoption, there are still several legal hurdles. Hence you need an experienced family law attorney.

Our lawyers at Waple and Houk have helped several same-sex couples navigate the adoption process. We are also passionate about protecting your rights. So, contact us today for a confidential case review.