Adoption for Same-Sex Couples
February 11th, 2022
With the legalization of same-sex marriage in North Carolina, adoption rights for LGBTQ+ couples have expanded considerably. Prior to the 2014 court ruling declaring the gay marriage ban unconstitutional, only LGBTQ+ individuals could adopt since same-sex marriage was not recognized in the state. But now, same-sex couples have more options available under the law to build their families — and establish their parental rights.
What Options Do Same-Sex Couples Have for Adoption in North Carolina?
Same-sex couples have the same options as heterosexual couples when it comes to adoption. Significantly, stepparent adoption is usually the best way for a spouse to establish parental rights to the other spouse's biological child — or a child the other spouse had adopted prior to the marriage. A married couple can also adopt jointly by using an agency to facilitate the adoption process, arranging an independent adoption, or adopting through foster care.
Stepparent adoption creates a legal relationship between the non-biological parent and the child. It also establishes and protects their parental rights in the event of divorce or the biological parent's death. Without securing their legal parental rights, it would be more difficult for the non-biological parent in a same-sex couple to establish a claim for child custody or visitation.. In some cases, the child could also potentially be taken away from them if the biological parent passes away.
What Are the Stepparent Adoption Requirements for Same-Sex Couples?
Marriage alone doesn't establish the other spouse's parental rights. There are a number of requirements and specific legal procedures involved with a stepparent adoption. However, for those who qualify, stepparent adoption is a relatively simple process that normally takes three months to complete.
A stepparent can adopt in North Carolina if they meet the following criteria:
- They have been legally married to the child's biological parent or adoptive parent for at least six months
- They have resided in North Carolina for six months or more
- They live with their spouse and the child
- Consent from the child was obtained (if they are over 12 years of age)
- The child's legal parents both consent
Additionally, a home visit may be conducted if the spouses were married for less than two years. The stepparent must also pass a state and federal criminal background check with a ten-year look-back period.
To finalize a stepparent adoption, a petition must be filed with the court along with a consent form completed by the biological parent. A consent form is also required for children over age 12 and for the child's other biological parent, if applicable. North Carolina imposes a 90-day waiting period before a court will issue an adoption decree. If the child's other biological parent objects to the adoption during that time, a hearing may be held — but if all parties consent, it may not be necessary to go to court at all.
Consent Issues in Stepparent Adoptions
The most complex issue a couple might face in a stepparent adoption is obtaining the other biological parent's consent. Under North Carolina law, a child can only have two parents. If the parental rights of the child's other biological parent were not terminated, their consent must be obtained before the stepparent adoption can be carried out.
In the event that a biological parent refuses to consent to the adoption, it must be demonstrated that it is in the child's best interests to terminate their parental rights. This burden of proof can be challenging for a stepparent to meet.Critically, before the best interests of the child will even be considered by a court, certain legal criteria must be established.
There are several grounds upon which a petition to terminate parental rights can be based, including abuse, neglect, dependency, failure to establish paternity, a parent’s violent felony conviction, or leaving a child in foster care for over a year. However, a stepparent might also be able to prove their case by demonstrating willful abandonment. This may be established if it can be proven that the biological parent did not see the child or pay support for a period of six months or more.
Generally, anonymous egg or sperm donors waive their parental rights in a contract executed before conception. The court will usually honor these documents in stepparent adoption cases. But in cases where the donor is known, it's essential to understand that their consent will be required for stepparent adoption unless their parental rights were explicitly terminated.
Adopting Jointly Through an Agency, Independent Adoption, or Other Type of Adoption
If a couple is not married, they cannot adopt jointly in North Carolina — although one of the unmarried partners can adopt a child individually. The same legal process for adoption applies to same-sex couples and heterosexual married couples. Notably, second parent adoption is not available in North Carolina.
Spouses can adopt together by using a private agency, pursuing an independent adoption, or adopting through foster care. Other types of adoptions for couples to consider can include surrogacy adoption, foreign adoption, and relative placement. Each adoption process has different procedures and documentation requirements. While only certain types of adoption may require pre-placement assessments, all require obtaining the necessary consent.
Contact a Trusted North Carolina Same-Sex Couple Adoption Attorney
Growing your family through adoption can be a rewarding and fulfilling experience. An experienced adoption attorney can help you navigate the process and ensure it runs smoothly. The Twiford Law Firm provides trusted counsel and knowledgeable representation for a wide variety of family law matters, including adoption.
With offices located in Moyock and Elizabeth City, The Twiford Law Firm provides knowledgeable representation for probate and estate planning matters to clients throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation.
Categories: Domestic & Family Law