Adoption

Supreme Court Issues Important Ruling In Native American Adoption Case :: Separation and Divorce Lawyers in Charlotte, North Carolina

Published on: June 11, 2013 | On behalf of Arnold & Smith, PLLC

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.

New York Case Reveals How Far Legal System Has To Come To Reflect Modern Families :: Child Custody Lawyers and Attorneys in Charlotte, N.C.

Published on: February 28, 2013 | On behalf of Arnold & Smith, PLLC

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.

Native American Adoption Case Goes Before Supreme Court :: Adoption Lawyers and Attorneys in Charlotte, NC

Published on: February 19, 2013 | On behalf of Arnold & Smith, PLLC

The Supreme Court announced its upcoming schedule and revealed that it will hear oral arguments in an important case known as Adoptive Couple v. Baby Girl. The case, more commonly known as the Baby Veronica case, involves a 2011 South Carolina Supreme Court decision about the parental rights of a 2-year-old girl of mixed race, half white and half Native American.

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.

Re-Adopted Child Successfully Sues First Family For Share Of Inheritance :: Adoption Lawyers and Attorneys in Charlotte, Mecklenburg County, NC

Published on: January 31, 2013 | On behalf of Arnold & Smith, PLLC

According to a recent Yahoo! article, an appeals court in New York ruled in favor of a Chinese girl who was adopted by a wealthy couple and then subsequently given up for adoption a second time. The family court judge ruled that the girl was owed a portion of her first family’s $250 million estate despite being given up for adoption by the couple back in 2003.

In 1996 a couple from Westchester County, NY adopted a baby from China, naming her Emily. The couple already had four biological children and, before Emily’s adoption was finalized, had a fifth biological child. Around the same time the husband was diagnosed with cancer.

When the adoption was finalized the family signed a contract stating the girl would legally be treated as if she were their biological offspring and that they would never abandon or have the girl readopted. The agreement also clearly stated that Emily would have a right to inherit the estate of her parents who had already established a trust in her name.

Tragically, the husband died only a year later. Years later, when Emily was taken to a school for children with special-needs, the surviving mother had her attorneys float the idea of having the girl adopted. The school’s assistant director and her husband expressed interest and agreed to adopt the girl.

The new parents had no knowledge of the family’s wealth or of the trust fund set up to care for the girl. Several years later the parents saw a filing that listed the family’s net worth at more than a quarter of a billion dollars and then filed suit claiming that Emily was entitled to a share of the estate. The mother responded saying that Emily had no rights to the estate since she had been readopted.

Adoption Laws in California to Allow Multiple Parents?

Published on: June 21, 2012 | On behalf of Arnold & Smith, PLLC

According to an interesting article on Yahoo, California, a state already grappling with a wide array of legal issues surrounding alternative families, has added one more to the mix. The most recent bill, SB1476, would allow children to be legally given more than two parents.

As written, the bill would apply equally to men and women, regardless of whether they were in homosexual or heterosexual relationships. The bill’s sponsor, State Senator Mark Leno, D-San Francisco, says that the bill is meant to bring the state into the 21st century and acknowledge that complicated family situations exist. He says the state must recognize that “there are more than ‘Ozzie and Harriet’ families today.” The bill has already passed the state Senate and now awaits a vote in the state Assembly.

Senator Leno said he first realized there was a problem with the current system last year when he read about an appellate court placing a girl in foster care after her legally married lesbian parents were unable to care for her. The child was taken into state custody after one of her mother’s was put in prison and the other was hospitalized. The court was not allowed to appoint the girl’s biological father, with whom she had a relationship, as a legal parent. Something that Leno believes would have greatly benefited the welfare of the child.

The law would require that parents qualify under all legal standards and agree on custody, visitation and child support before a judge could divide up responsibilities. If California passes such a law it won’t be alone, already Pennsylvania, Delaware, Maine and the District of Columbia have laws on the books recognizing more than two parents.

The bill has some strong opposition. Glenn T. Stanton, from the group Focus on the Family, argues that though the bill appears to advocate for children, it is actually a tool to allow adults to create what he calls “radical families.” He says that children are best cared for by one mother and one father and “this bill would only take us farther down the trail of more ‘experimental families’ that fulfill adult desires, but consistently fail our children.”

Same-Sex Adoption Laws Lead ACLU to Sue North Carolina

Published on: May 29, 2012 | On behalf of Arnold & Smith, PLLC

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.

Adoption and Child Custody Ruling Issued by North Carolina Court of Appeals

Published on: November 17, 2011 | On behalf of Arnold & Smith, PLLC

In the adoption and child custody case of Best v. Gallup, the North Carolina Court of Appeals examined a case involving both an adoption and nonparent child custody. In the adoption and child custody case at bar, mother and “father” were romantically involved and intended to be married. For approximately six (6) years, mother and “father” had custody of, and raised together, the minor child. Prior to marriage, mother adopted the minor child while “father” was in Iraq working. The intention of the parties was for “father” to adopt the minor child after the “father” returned from a job in Iraq and the parties were married. Before “father” returned from Iraq, before the parties were married and before the “father” could formally adopt the minor child, mother broke off the relationship with “father.” “Father” filed a civil lawsuit for child custody against mother.

The trial court dismissed “father’s” action for child custody. The trial court found that it would not be in the best interest of the minor child for said minor child to be cut off from “father” but that mother had not acted contrary to her paramount parental status. The trial court did not actually specify the exact reason for the dismissal of “father’s” child custody action. “Father” appealed and mother did not file any brief in opposition.

The North Carolina Court of Appeals reversed the trial court’s dismissal and remanded the case back to the trial court for the establishment of a child custody and visitation schedule. The North Carolina Court of Appeals, based on the actual findings of fact by the trial court, reversed the trial court’s determination that mother had not acted contrary to her constitutionally protected status as parent. Rather, the North Carolina Court of Appeals found that mother had, in fact, acted contrary to her constitutionally protected status as parent. The North Carolina Court of Appeals found as such based on two particular points. First, it found it compelling that mother had allowed “father” to make decisions relating to the minor child. Second, the North Carolina Court of Appeals noted that mother had brought another person (“father”) into the household for an indefinite period of time with no expectation of that relationship ending. Ultimately, the North Carolina Court of Appeals ruled that “father” was entitled to child custody and/or visitation because mother had acted contrary to her constitutionally protected status as parent and it would be in the minor child’s best interest for “father” to have parenting time.

Same Sex – Second Parent Adoption Case Decided by North Carolina Supreme Court

Published on: June 24, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Supreme Court ruled on the issue of same sex adoptions, or second parent adoptions, in the case of Boseman vs. Jarrell. This case involved a same sex couple who conceived a child together. After the child was born, the second parent adopted the child. The North Carolina Supreme Court ruled that the adoption decree was void ab initio because “the General Assembly did not vest our courts with subject matter jurisdiction to create the type of adoption attempted here.”

Same Sex Adoption without Same Sex Marriage?

Published on: February 22, 2011 | On behalf of Arnold & Smith, PLLC

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.

North Carolina Supreme Court Considering Same-Sex Adoption

Published on: September 14, 2010 | On behalf of Arnold & Smith, PLLC

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.