Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
What is a mother? A father? A parent? Though these concepts have long avoided detailed examination by the courts, times are changing and specific definitions will need to be created or, in some cases, changed. As states continue to feel the impact of the Obergefell same-sex marriage case, they have found themselves increasingly drawn into disputes regarding what makes someone a parent, something that requires the courts to lay out a more precise and potentially different definition than in years past.
Charlotte Divorce Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What children’s expenses are covered by child support?”
In 2015 the U.S. Supreme Court ruled once and for all that same-sex marriage was legal. But what about state adoption and birth certificate laws that still assume marriage is always between a man and a woman?
Even though same-sex marriage became legal in all 50 states last year, gay couples in North Carolina and many other states still face numerous legal hurdles that straight couples do not when it comes to making and preserving a family.
A recently introduced bill in Arizona highlights how far our country still has to go towards true equality. Lawmakers proposed a bill in January 2016 that would strike the language in the state adoption laws that give preferences to married heterosexual couples. This is in a state that currently has almost 20,000 children in foster care and is turning away qualified, loving prospective parents.
The bill is designed to help both the children involved and potential parents. The legislation, introduced in both the Arizona House of Representatives and Senate, argues that the U.S. Supreme Court’s decision legalizing same-sex marriage last year bans laws that give preference to heterosexual couples.
North Carolina state adoption laws are written much like Arizona’s—they presume that parenting takes place between a mother and a father, and they don’t let unmarried couples adopt.
Form of Adoption
Legal Status of Petitioner
Allowed in North Carolina?
Single or Married
Any single adult can petition to adopt in all fifty states. However, in North Carolina, “joint adoptions,” where both partners petition the court to adopt a child together, is not available unless the partners are married. So if you’re married and want to adopt a non-related child together, you can jointly petition to adopt in North Carolina.
But what if one of you is the biological parent of a child and you want the other to become their second legal parent? Because birth certificates in North Carolina specifically only have spaces for a mother and father, only one of you would have been allowed to put a name on your child’s birth certificate. Second-parent adoption, while around in other states, is not allowed here. So now that you can be married, if you have since done so, how can you obtain full parental rights to protect your family?
Enter Stepparent Adoption. Since the federal marriage ruling last year, something called stepparent adoption became available to same sex-couples in North Carolina. Before gay marriage was legal, this type of adoption was only available to married, and therefore straight, couples. Stepparent adoption is actually the most common type of adoption in the United States, and is same-sex couples are increasingly using it to guarantee the rights and protections of their families.
What Do I Need to Qualify for a Stepparent Adoption?
To be legally married to the child’s biological parent
The parental spouse must have legal custody of the child
The home you share with the parental spouse needs to have been the child’s primary residence within the six months immediately before the filing of the adoption petition
Consent to the adoption from the child’s other parent, unless one of the few exceptions to this requirement applies (such as if the parent received notice of the adoption proceedings but did not respond within 30 days, or if they have had their parental rights already terminated by a court order)
Consent from the child if he or she is 12 or older (unless the court decides the child’s wishes are not in his or her own best interests.
Stepparent adoption does not automatically terminate the rights of the child’s second biological parent, but you can petition the court to do so if it is the best interests of the child. If you or your someone you love is thinking about adopting in a same-sex relationship, contact Arnold & Smith, PLLC at (704) 370-2828 today so one of our experienced and dedicated family law attorneys can help you protect the rights of your family or find additional resources here.
About the Author
Matthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.
Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.
A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.
In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.
Attorney Matthew R. Arnold answering the question: “What can I do to gain custody of my child in North Carolina?”
A lawsuit out of Utah has sparked nationwide coverage after a man claims that his son’s biological mother put their child up for adoption without his knowledge. The man has responded by suing the woman, the adoptive parents and the adoption agency for $130 million in federal court, claiming that the decision amounts to kidnapping.
The adoption took place soon after the boy was born, roughly three years ago. The father, Jake Strickland, says that the boy’s biological mother, the adoption agency and the adoptive parents all conspired to conduct a secretive and illegal adoption that deprived him of access to his son.
Strickland met Whitney Demke back in 2009 and the two dated for several months before breaking up prior to the boy’s birth in December 2010. Strickland says he knew about the child and that the two had remained on friendly terms despite the breakup. He says that they had discussed the issue of custody and that both agreed to share custody of the child as he got older. Strickland also says he gave Demke money whenever she needed it and had planned on naming him Jack.
Despite the seemingly positive mood, Demke placed the child up for adoption the day after he was born. Strickland says he was not informed about the adoption until a week after it was over. Days after the revelation, Demke admitted to having planned the adoption for months, deciding that the boy would be better off in the hands of a more stable and financially grounded couple.
Attorney Matthew R. Arnold answering the question: “What are my custody rights if the other parent moves?”
The Ohio couple that generated a lot of attention for giving up the 9-year-old adopted son they had raised since infancy is back in the news as court records reveal additional information about what took place prior to the child’s surrender.
Documents filed with the Butler County Common Pleas Court say that the mother, Lisa Cox, believed the boy was a genuine danger to the family’s safety and that she felt she had no choice but to surrender the child. Lisa and her husband, Cleveland Cox, both pled not guilty last week to misdemeanor charges of nonsupport of a dependent.
Prosecutors in Butler County who are handling the case say that Lisa and Cleveland left the boy with the county’s children’s services office after he began displaying aggressive behavior, including threatening family members with a knife. The boy was dropped off at the children’s services office with a bag containing some clothes and a handwritten letter from Lisa saying that she loved him and that he would never be forgotten.
Prosecutors say, shockingly, the boy did not know he was going to be given up, and that he was only told that he was going to a hospital where they would fix what was wrong with him. He did not realize that once he left he would never be returning home. Prosecutors say Lisa’s note included mention of how it broke her heart to hand him back to child welfare authorities and said she was praying that God would provide the boy the “perfect family” to show him love.
National experts on adoptions say that the case of the Cox family is a very unusual one given that the boy was adopted as an infant. Experts say that it is extremely rare in such cases for an adoption to fall apart. Instead, most cases of family discord occur when children are adopted at older ages and then try to assimilate into their new families.
Attorney Matthew R. Arnold answering the question: “Does adultery affect who gets custody?”
The Baby Veronica battle rages on in Oklahoma as a spokesperson with the Oklahoma Courts said the two sets of parents are currently in the midst of a lengthy mediation over the future of the young girl. In fact, reports says that the mediation sessions have continued running well past the courthouse’s normal closing time, all efforts to ensure that the matter is wrapped up as quickly as possible.
The media has been in the dark most of this week about what has gone on in the case, with no comments being released by either side. Though it is now known that mediation is ongoing, it is not clear how much progress is being made. Both sides are currently under strict gag orders and are prevented from speaking to members of the media.
Reports indicate that the two groups have spent the past four days negotiating in a room in the Court of Civil Appeals building in downtown Tulsa. Previous statements by Matt and Melanie Capobianco indicate that the adoptive parents, who were awarded custody by South Carolina family law courts, have said that they wanted Veronica’s biological father Dusten Brown to be a part of the girl’s life. For their part, a friend of the Brown family recently said that the family had suggested sending Veronica to South Carolina for the summer to live with the Capobiancos so long as she could stay in Oklahoma during the school year.
The case is a sad one and difficult for both sides given that the Capobiancos raised Veronica in South Carolina for the first two years of her life. Since then, Brown has had Veronica with him and his new wife in Oklahoma for the last two years. Experts say that given how emotional the case has become it is likely that neither group will leave the mediation completely satisfied. However, the goal of the mediation is to produce a solution that both groups can live with.
Attorney Matthew R. Arnold answering the question: “What can I do to gain custody of my child in North Carolina?”
It finally looks like the sad case of the adopted girl from South Carolina might be coming to a conclusion. According to a recent report by the Associated Press, the father of Baby Veronica has turned himself into authorities in Oklahoma.
Dusten Brown, the biological father of the three-year-old girl at the center of a recent Supreme Court case has turned himself into authorities while his daughter remains with family members in the area. Brown surrendered himself on Monday after having been charged over the weekend with custodial interference and a warrant was issued for his arrest in the case involving his daughter.
A couple from Charleston, SC, Matt and Melanie Capobianco, have spent the last 18 months fighting to have the girl returned to them after Brown won custody in 2011. Brown successfully used the Indian Child Welfare Act to reassert his parental rights after initially voluntarily signing them away.
Authorities say Veronica is currently in the care of Brown’s parents and Brown’s wife. The three individuals were recently named temporary guardians of the girl by a Cherokee Nation court. Brown, who is 2 percent Cherokee, asserted his heritage in his child custody fight with the Capobiancos, a ploy that was recently struck down by the U.S. Supreme Court. The case was remanded to South Carolina where the Capobiancos were affirmed as Veronica’s rightful parents and Brown was ordered to return the girl as part of a gradual transition process that is aimed at reintroducing the toddler to the Capobiancos. So far, Brown has refused to participate.
Attorney Matthew R. Arnold answering the question: “Can you guarantee I will get the resolution I want?”
The Supreme Court issued a much-anticipated decision this week in the case of Adoptive Couple v. Baby Girl. The case concerned the power of the Indian Child Welfare Act (ICWA) to allow a man with Cherokee ancestry to rescind his decision to terminate his parental rights and take back custody of his young daughter. The Supreme Court voted 5-4 to reverse and remand the case back to South Carolina.
Rather than broadly reinterpret ICWA, the Court decided to rule narrowly that the law did not apply in the case. The Court decided not to attack ICWA itself, a prospect that worried Native American groups that were concerned about the lack of protection its destruction could mean for Indian families.
The background of the case involves a Hispanic woman, Christy Maldonado, who gave birth in 2009 to a child fathered by Dusten Brown, a member of the Cherokee Nation. Maldonado decided to put the child up for adoption after she and Brown broke off their engagement and ultimately chose a white couple from South Carolina to serve as the girl’s parents. Brown signed away his parental rights to avoid paying child support and only years later did he say that this was a mistake and that he wanted to reassert his parental rights and take custody over the little girl. Because of his Cherokee lineage, Brown won custody of the girl.
Though a quick scroll through the TV guide tells us how much American family life has changed over the decades, less “Brady Bunch” and more “Modern Family,” our family law system has failed to keep pace. The idea of what a family is supposed to look like has changed enormously as gay parenting and single mothers have become vastly more commonplace, yet the courts haven’t been as quick to adapt.
A clear instance of this gap is occurring today in New York State. A New York Times article recently discussed the complicated case of a pharmaceuticals executive named Jonathan Sporn. Dr. Sporn filed a motion in a New York court late last month saying that he and his then girlfriend, law firm partner Leann Leutner, had a baby boy last year. The couple had fertility issues and relied on an anonymous sperm donor. The two had been together for several years, living together in a committed, monogamous relationship. Two failed marriages had convinced them both not to get married again and they were instead going to raise their child as a non-married couple.
The problem with their plan arose in December when Leutner took the young boy and left Sporn for a new apartment in New Jersey. After a few days out of the city she killed herself. Though the turn of events was a surprise, it was not completely unexpected. Leutner had a history of psychological problems and was suffering from an especially serious case of postpartum depression.
Since Leutner’s death, the child has been in protective care and is now in a foster home in New York City, this despite repeated attempts by Sporn to get custody of his son. Leutner’s sister has also tried to get custody of the boy. So far a judge has agreed that either home would be acceptable for the child, yet despite this seal of approval Sporn still does not have his child who has been given the label “destitute” since, legally, he has no known parents.
The case began in 2008 when Christina Maldonado, a white woman, got engaged to Dusten Brown, a member of the Cherokee Nation. A month later Maldonado became pregnant and Brown pushed her to move up their wedding date. Maldonado, feeling uncomfortable with the pressure broke off their engagement and eventually decided to put the child up for adoption.
In 2009, Maldonado met a couple interested in adopting the child though Brown was never involved in the adoption process. Oklahoma law requires that all Indian tribes be notified of any adoptions that involve children of Indian heritage.
In January of 2010 Brown, who was about to deploy to Iraq, heard about the adoption. He got ahold of legal papers which indicated he was not contesting the relinquishment of his parental rights and had waived the standard waiting period for the adoption. With the help of a military attorney he was able to request a stay of the adoption proceedings.
More than a year later a family court in Charleston, SC ruled in favor of Brown holding that state law was trumped by the federal Indian Child Welfare Act which protects the rights of Indian parents involved in adoption proceedings. South Carolina law would have worked against Brown as it says that a father’s parental rights are terminated if he fails to provide pre-birth support and does not become involved in the child’s life shortly after birth.