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ACLU suit challenges state’s adoption ban

This story originally appeared here and is published on Carolina Public Press through a content-sharing agreement with The Charlotte Observer.

By Gary L. Wright and Claire McNeill

The American Civil Liberties Union on Wednesday sued North Carolina, hoping to overturn state laws that prevent gay and lesbian couples from adopting their partners’ children.

The lawsuit was filed on behalf of six North Carolina same-sex couples who are seeking to provide their children with two legal parents.

The couples are hoping to obtain what’s called second-parent adoptions. That occurs when one unmarried partner adopts the other partner’s biological or adopted child. The ACLU says the N.C. Supreme Court has banned second-parent adoptions for same-sex couples.

“North Carolina’s law denies children the permanency and security of a loving home simply because their parents are lesbian or gay,” said Jennifer Rudinger, executive director of the ACLU of North Carolina. “This is fundamentally wrong. No parent should have to worry about what will happen to their children if something happens to their partner.”

The Supreme Court, in its 2010 ruling, concluded that the state appeals court had erred in determining that a same-sex partner’s adoption of a biological mother’s child was valid. The same-sex partner is not a legally recognized parent of the minor child, the justices ruled. The case involved attempts by former State Sen. Julia Boseman, D-New Hanover, the legislature’s first openly gay member, to adopt her former partner’s biological son.

The ACLU’s lawsuit, filed in federal court in Greensboro, comes just weeks after North Carolina voters approved a constitutional amendment that states that marriage between one man and one woman is the only legal union in the state. North Carolina has had a law banning same-sex marriages for 16 years.

The ACLU’s lawsuit names as defendants John Smith, the director of the N.C. Administrative Office of the Courts (AOC) in Raleigh, and the clerks of Superior Court in Durham and Guilford counties.

Sharon Gladwell, the spokeswoman for the AOC, said the agency has not yet been served with the ACLU’s lawsuit.

“The North Carolina Administrative Office of the Courts does not comment on any matters where litigation is pending,” Gladwell said.

The lawsuit says that gay and lesbian parents cannot petition for joint adoption because state statutes provide that if an individual filing an adoption petition is unmarried, no other individual may join in the petition.

“There is no basis for the state automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents – without even considering what is best for the children … ,” the lawsuit says.

“The question of whether an adoption by a second parent is in an individual child’s best interest can be determined only through an individual review process, not through categorical bans such as that applied in North Carolina.”

The lawyers for the same-sex couples argue that other states – including California, Delaware, Illinois, Indiana, New York, Pennsylvania and Vermont – allow second-parent adoptions by unmarried gay and lesbian parents.

Lee Knight Caffery, 36, and Dana Draa, 41, one of the couples in the lawsuit, have been together almost seven years.

The Charlotte couple always knew they wanted to have children. They eventually decided Caffery would bear the children through artificial insemination from an anonymous donor.

Her son, Miller, is now 3 1/2; her daughter, Margot, is 18 months.

But under North Carolina law, only Caffery has legal rights to the children. If something were to happen to her, Draa might lose the children. “My mother is a very devoted and involved grandmother, but should something happen to me, or heaven forbid, me and my mother, my legal next of kin is my father,” she said. “You can imagine the horror of a 3-year-old and a 1-year-old taken away from the only home they’ve known.”

But if the law were struck down, Draa could adopt the children.

“We wouldn’t worry that our family would be wrecked or torn apart,” Caffery said.

Marcie and Chantelle Fisher-Borne, another couple in the lawsuit, have been together for 15 years and live in Durham. Each woman gave birth to a child – a girl who is now 4 years old and a boy who is now 6 months old. When the girl was born, the couple were treated rudely by a hospital staff member who demanded their legal paperwork, the ACLU said. If both women were able to be fully recognized legal parents to their children, such encounters could be avoided.

“We were treated as if our family was less than other families during what should have been one of the happiest occasions of our lives,” Marcie Fisher-Borne said. “We don’t ever want there to be any question as to who should care for our children. If something were to happen to either one of us, it could tear our family apart.”

The ACLU said some of the protections that come with a second-parent adoption include: ensuring that all children in the family are covered if one partner lacks health insurance; ensuring that families will stay together and children will not be taken from their home if something should happen to the biological parent; and ensuring that either parent will be allowed to make medical decisions or be able to be at their child’s bedside if one of their children is hospitalized.

The other plaintiffs in the case are Crystal Hendrix and Leigh Smith of Asheville; Shana Carignan and Megan Parker of Greensboro; Leslie Zanaglio and Terri Beck of Morrisville; and Shawn Long and Craig Johnson of Wake Forest.

“The current policy is discriminatory and doesn’t take into account what’s best for a child,” said Elizabeth Gill, senior staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project.

“These parents want the same thing as any other parents – to be able to provide the best possible care and protection for their children. The law should not stand in the way of allowing loving couples to share responsibility for their families.”

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