Charlotte Divorce Lawyer Blog

In a recent amicus brief filed with the U.S. Supreme Court, the Obama administration attacked a legal argument that some see as key to the movement against gay marriage: that gay couples cannot accidentally become pregnant and thus do not require access to marriage. The argument is central to two major gay marriage cases before the nation's highest court: Hollingsworth v. Perry about California's gay marriage ban and U.S. v. Windsor which is challenging DOMA.

The attorney representing those supporting DOMA (the federal Defense of Marriage Act) wrote that opposite-sex couples have a unique tendency to produce unintended offspring. The attorney, Paul Clement, went on to say that because same-sex couples cannot naturally produce children, the government has a legitimate interest in solely recognizing those marriages between men and women because this can encourage them to form stable family units to raise children. Those opposed to gay marriage also argue that by allowing gay couples to marry it may discourage other straight couples from marrying, thus harming a legitimate government interest in encourage procreation.

The Obama administration said it was ridiculous to pretend that marriage is merely society's way of dealing with unintended pregnancies. The brief also said that gay marriage would neither help nor hurt straight couples who might want to marry.

Continue reading "Bizarre Argument Becomes Focus Of Gay Marriage Case Before Supreme Court" »

The same-sex marriage controversy in North Carolina deepened after it was recently announced that the American Civil Liberties Union (ACLU) filed suit against the state to overturn their laws that prevent gay and lesbian couples from adopting their partners' children. The lawsuit was filed on behalf of six couples from the state who are seeking to adopt the children of their partners.

The couples are attempting to receive what's known as a second parent adoption. This occurs when one unmarried partner adopts the other's biological or adopted child. The North Carolina Supreme Court has banned such second-parent adoptions for same-sex couples. The ACLU claims that the law prevents same-sex couples from providing for the safety and securing of their children by not allowing them to be adopted.

In 2010, the state Supreme Court held that a lower court made a mistake by approving an adoption by a woman's same-sex partner. The justices ruled that the same-sex partner was not a legally recognized parent of the minor child. The case at issue 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.

In their brief the ACLU says that, "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 group continues, arguing that, "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 ACLU says that some of the benefits that come with a second-parent adoption include: ensuring that the 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.

Continue reading "Same-Sex Adoption Laws Lead ACLU to Sue North Carolina" »

We've all read the articles about North Carolina voters' decision to approve the constitutional amendment banning gay marriage. The issue is very controversial and has generated nationwide attention. But what about gay divorce? Like any other relationships, gay marriages can sometimes go bad. And, although gay marriage is not recognized still in many states, courts are having to grapple with what to do when a legally married gay couple wants to end things. One Ohio judge recently saw just such a case and decided to permit gay divorce in a state that doesn't recognize gay marriage.

Two men from Columbus, Ohio, Jonathan Baize and Stephen Wissman, were granted a divorce in March by a judge with the Franklin County Domestic Relations Court. While it is certainly unusual for both parties in an Ohio divorce proceeding to be of the same sex, one attorney who was present at the hearing described the proceedings utterly "unremarkable." Rather than serve as a historic moment in the state, the divorce was simply paperwork.

The two men married not long ago, on September 1, 2011, at a ceremony in New York State. They then returned home to Ohio but decided to divorce soon thereafter, a decision that has important implications for Ohio law. In 2004, Ohio voters approved an amendment to the state's constitution that prohibited gay marriage. Supporters of the amendment have argued that by allowing a gay divorce a court would be forced to tacitly acknowledge that a marriage was valid in the first place.

Proponents of the decision turn to the letter of the law and point out that the amendment refers only to marriage and does not deal with same-sex divorce. The judge handling the case apparently agreed and decided to dissolve their relationship.

Continue reading "Gay Divorce without Gay Marriage?" »

A recent CBS News article discussed the decision by North Carolina voters to change the North Carolina state constitution this week to ban gay marriage. The law of the land now reads that the only legally valid domestic partnership in the state is marriage between a man and a woman. The constitutional amendment received broad support, passing 61% to 39%, and made the state the 29th to institute such a ban.

To some the amendment seemed unnecessary given that the state already had a gay marriage ban in place. The new amendment makes it even more difficult for lawmakers to ever attempt to change the law. It also goes further than the previous ban by preventing North Carolina local governments from extending health benefits to the domestic partners of their employees.

The lead up to the vote saw public pleas from Bill Clinton and President Obama. Supporters of gay marriage out-raised and out-advertised their opponents in the lead up to the vote, emphasizing in TV ads that the amendment could also even have repercussions for unmarried straight couples because of its vague language. The anti-amendment coalition raised more than $2 million. The pro-amendment crowd on the other hand, known as Vote for Marriage NC, raised a little more than $1 million.

Unfortunately only 46% of voters realized that the amendment would ban civil unions for gay couples as well as marriage. A recent poll by Public Policy Polling indicated that a majority of North Carolina voters support civil unions, a bit of contradiction given the results of the recent amendment fight.

North Carolina is far from the only state facing such issues. Minnesota faces a ballot gay marriage ban in November, as does Maine. On the other side of the dispute are states like Maryland and Washington who passed laws legalizing same-sex marriage. New Jersey recently did the same but found the measure vetoed by Republican Governor Chris Christie.

The recent passage has already lead to a few disputes. A lesbian who attempted to get a marriage license with her partner and was rejected was arrested with another person just yesterday after they refused to leave a government office. The protest was planned by the gay rights group Campaign for Southern Equality and was meant to broaden public support to allow same-sex marriage.

Continue reading "North Carolina Constitutional Amendment to Ban Gay Marriage" »

According to a recent article on Yahoo.com, a brewing battle between a Florida lesbian couple could spark an important debate over the definition of motherhood.

The women are both in their 30s and both members of law enforcement. One of the women donated an egg that was fertilized and implanted in the other. That partner eventually gave birth in 2004.

In 2006 the couple split up and the birth mother left the state with the child without informing her former partner. The egg-donating woman eventually tracked them down in Australia and began a battle to get the child back in Florida. The fight has now made its way to the Florida Supreme Court which has not yet decided whether it will hear the case. A trial judge ruled in favor of the birth mother saying the biological mother had no parental rights under Florida law. The lower court judge was quick to point out that he hoped to be overruled, but until then had to follow existing law.

The 5th District Court of Appeal did as requested and sided with the biological mother, holding that both women had parental rights to the child. The case combines several controversial issues, including a 1993 state law regulating sperm and donation and a larger question of the constitutional right of homosexuals to raise children and be entitled to equal protection under the law.

The biological mother is not attempting to blaze any trails. According to her lawyer she simply wants to see her daughter again, "She hasn't seen her daughter in years, and it's been terribly, terribly difficult for her."

The Florida duo isn't the only lesbian couple embroiled in such a dispute. One Virginia woman who renounced her homosexuality has been in hiding with her daughter since a 2009 court decision requiring that her former partner be given custody.

Closer to home, former North Carolina state Sen. Julia Boseman, the first openly gay member of the state's Legislature, is suing for joint custody of a 2-year-old son born to a woman Boseman referred to as her spouse.

In the Florida case, the Court of Appeal decided that the women's decision to separate did not dissolve the parental rights of either woman. This despite the argument by the birth mother citing the state's law on sperm and egg donation, which says that donors "relinquish all maternal or paternal rights," to argue that the biological mother wasn't the child's parent.

The appellate court reversed the lower court judge in a 2-1 decisions finding that the biological mother wasn't merely a "donor" under the law because she and her former partner intended to parent the child together. The Court ultimately found that they could not find any valid legal reason to deprive either woman of parental rights. The majority further ruled that the donor law was unconstitutional as applied to this case.

Continue reading "Same-Sex Couples and Child Custody Disputes" »

One recent article on Yahoo.com, discussed the issues women face even in the modern age. Though women's place in the world has risen dramatically, there are still instances where problems persist. One example of a semantic issue that nonetheless speaks to a woman's role in the world involves the attitudes about women changing or not changing their names following marriage.

A study dedicated to examining the issue was authored by two Pennsylvania State University sociologists, Laurie Scheuble and David Johnson. Previous studies regarding name-changing focused on the New York Times wedding announcement page, something that resulted in a very limited pool of research subjects. This new study used data from two surveys (one from 1990 and the other from 2006) conducted at a Midwestern university. Additionally, the study surveyed hundred of students at Penn State asking about name-changing and their opinion on the practice.

Surprisingly, the 2006 survey showed that students were three times more likely to say that if a woman did not take her husband's last name upon marriage, she was less committed to him and their future together. Perhaps unsurprisingly, the Midwestern women were less likely than those at Penn State to say they wanted to keep their own names. The oddest part of this information is that the 2006 survey indicates stronger attitudes against name-changing than the 1990 survey.

In 1990, only 2.7% of students believed that a woman keeping her own name was less committed to her marriage. By 2006 this number jumped to 10.1%.

Regardless of the practice's perception among Midwestern college students, a woman changing her name (or not) is no indication of commitment in a relationship. Evidence of this is that educated professional women tend to marry at a later age and thus hang onto their own names yet also tend to have more long-lasting (and hopefully happier) marriages.

Continue reading "Name Change Following Marriage Still a Sensitive Subject" »

As reported by the Charlotte Observer (Poll: Most oppose same-sex marriage ban), according to a recent poll conducted by Elon University, fifty-six percent of North Carolina residents oppose a North Carolina state constitutional ban on same-sex marriage. Also, the number of individuals who would prefer to see no legal recognition for same-sex couples has dropped over the last two years.

Only thirty four percent of those polled oppose any legal recognition for same-sex couples. This figure is down significantly, from forty four percent, from the March 2009. Following a similar trend, thirty three percent of those polled support full marriage rights for same-sex couples, which is up from only twenty one percent in 2009. Roughly the same percentage of those polled support civil unions or partnerships, but not full marriage rights.

The study surveyed 594 North Carolina residents with a plus or minus 4 percentage point margin of error. The poll did not restrict respondents based on voter eligibility or likelihood of voting.

Continue reading "Same-Sex Marriage Okay with Most in North Carolina?" »

According to the most recent Census data, North Carolina has more and more same-sex domestic partners. In fact, according to the data, the number of same-sex domestic partners in North Carolina has increased 68% in the last decade. Much of the growth has been in the western part of the State and along the coast.

It is difficult to tell whether the numbers have actually increased. According to the article, it is possible that the increased census figures are the result of more and more people being comfortable disclosing their status accurately on government forms.

Continue reading "Same-Sex Domestic Partners Fastest Growing in North Carolina" »

To follow up on a previous article on the Charlotte Divorce Lawyer Blog, in December, the North Carolina Supreme Court voided the adoption of a child by a lesbian mother who was raising the child with her former partner. This case, discussed in a previous post, involved two women who were litigating custody issues after a so-called "second parent adoption" in 2005. Melissa Jarrell, the ex-partner of former North Carolina Senator Julia Boseman, is the biological mother of the child. The women planned for a child together, and Jarrell consented to Boseman adopting the child in 2005, as a 3-year-old. The couple broke up in 2006, and Jarrell petitioned for sole custody, claiming that the adoption should never have been granted because North Carolina law does not permit second parent adoptions. The trial court and the Court of Appeals upheld the adoption. The Supreme Court overturned the ruling with regard to the adoption, but upheld the ruling granting Boseman joint custody.

Continue reading "Same Sex Adoption without Same Sex Marriage?" »

The definition of a family in America is critical, especially in Charlotte, North Carolina - it can affect tax filings, adoption proceedings, employment benefits, inheritance rights, and many other legal matters. A majority of Americans now say that their definition of a "family" includes same-sex couples with children, as well as gay and lesbian couples. However, most Americans also report that they do not consider unmarried cohabitating couples, either heterosexual or homosexual, to be a family - unless they have children. These findings emerged from a study based upon telephone interviews conducted in 2003, 2006, and 2010 by author and Indiana University professor Brian Powell. Powell concludes that the framing of the issue of equality of same-sex couples in terms of "the best interests of the child" might prove to be the most successful political argument.

The survey also indicates that since 2003, the proportion of people who reported having a gay friend or relative rose 10 percent, which Powell attributes to "a more open social environment in which individuals now feel more comfortable discussing and acknowledging sexuality." Furthermore, Americans appear to be almost equally divided on same-sex marriage and more open to seeing same-sex couples with children as families, even when they hesitate to recognize the parents' union as marriage. The survey also demonstrated a growing belief that genetics, rather than parenting, peers, or religion, is responsible for sexual orientation. Those who remain opposed to same-sex marriage indicated to the surveyors that they were more willing to include pets over same-sex partners in their definition of family.

Although five states and the District of Columbia now allow same-sex marriages, these marriages are not recognized by the federal government. The Census Bureau defines family as "a group of two people or more (one of whom is the householder) related by birth, marriage, or adoption and residing together."

This Charlotte child custody lawyer observes that a current custody case being heard by the North Carolina Supreme Court could decide whether North Carolina state law allows a certain kind of adoption by same-sex couples in North Carolina. Senator Julia Boseman and her ex-partner, Melissa Jarrell, are litigating custody issues after Boseman's so-called "second parent adoption" of Jarrell's son in 2005. Second parent adoptions, which are being granted in only a few North Carolina counties, are permitted in 27 other states.

Jarrell and Boseman were living together when the child was born in 2002, after Jarrell's successful artificial insemination. Boseman has been actively involved in the child's life since his birth. After the couple broke up in 2003, they received joint child custody. However, Jarrell's lawyer argued that the adoption should be voided because second parent adoptions technically do not exist under North Carolina law. The trial court and the Court of Appeals upheld the adoption, but Jarrell's attorney argues that the adoption court created its own adoption procedure by weaving together various statutes to make a new kind of adoption that is not provided for by statute. Boseman's lawyer calls the adoption a "direct placement adoption", which is provided for by law in North Carolina.

A ruling in the case is likely to be months away.

As we have discussed here (The Legal Hurdles of Obtaining a Same-Sex Divorce) legal issues related to same sex divorce are, naturally, becoming more important as same sex marriage increases. According to a new research team from Stockholm University's Department of Sociology and Demography, who studied legal partnerships in Norway and Sweden, same-sex marriages are much more likely to end in divorce than opposite-sex marriages. This study found that male same-sex marriages are 50 percent more likely to end in divorce than heterosexual marriages, while female same-sex marriages are 167 percent more likely.

Five states and the District of Columbia now allow same-sex marriage and, consequently, same-sex divorce, but same-sex couples who wish to divorce in states that do not recognize their marriages are now facing significant legal hurdles. Many same-sex couples remain in marital limbo while states across the country are struggling to decide their stance on same-sex divorce.

Under the Full Faith and Credit Clause of the United States Constitution, states must generally recognize the laws of other states. For example, opposite-sex marriages and divorces are recognized when a heterosexual couple moves across states lines. However, most states that do not allow same-sex marriage will similarly not recognize a same-sex marriage performed in another state. Some states, like North Carolina, do not allow same-sex marriage and will not legally recognize a same-sex marriage performed in another state. Thus, opponents of same-sex divorce say that allowing these couples to divorce means acknowledging that the marriage was legal initially.

Today, the lesson to be gained from the current debate over gay divorce is that these couples who are legally wed in one state should be careful regarding the state to which they choose to relocate. Under the laws of many states, it takes at least a year to establish residency before filing for divorce. A couple that is refused a same-sex divorce in a state that does not recognize same-sex marriage would have to relocate to reestablish residency in the state that granted their marriage license, which would only further complicate and significantly delay the process.