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Ex-same-sex partner not a parent but keeps joint custody

Paul Tharp, Staff Writer//December 23, 2010//

Ex-same-sex partner not a parent but keeps joint custody

Paul Tharp, Staff Writer//December 23, 2010//

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By PAUL THARP, Staff Writer

[email protected]


To this day, Wilmington attorney James Lea III doesn’t know the underlying motive for Melissa Jarrell’s legal attempts to unwind the adoption of her biological son by her former partner Julia C. Boseman.

“I don’t know what the basis of it is from Jarrell’s standpoint,” Lea told Lawyers Weekly. He represented Boseman in a lawsuit she brought seeking primary custody the child.

According to the suit, she legally adopted the child in 2005. But after her relationship with Jarrell ended in 2006, Jarrell began limiting Boseman’s contact. Jarrell challenged the validity of the adoption decree and counterclaimed for custody.

A New Hanover County district court judge awarded the parties joint custody using the “best interest of the child” standard, and Jarrell appealed. The N.C. Court of Appeals concluded that the decree was valid and left intact the custody determination.

In a Dec. 20 opinion the N.C. Supreme Court reversed and declared the 2005 adoption decree void ab initio. The case is Boseman v. Jarrell (Lawyers Weekly No. 10-06-1208, 35 pp.).

But because Jarrell had engaged in conduct inconsistent with her paramount parental status by sharing parental responsibilities with Boseman and by consenting to Boseman’s adoption of the child, the lower court did not err in applying the “best interest of the child” standard in determining the parties’ custody rights, Justice Paul M. Newby wrote for the majority. The court therefore left the custody order undisturbed.

So while the legal underpinnings of Boseman’s relationship to the child may have changed, the practical effect of the Supreme Court’s decision preserved the status quo.

“Both parties agreed that there was an amicable setting in raising of the child,” Lea said. “Julia said it was positive for Melissa to be in the child’s life, and Melissa said it was positive if Julia stayed in the child’s life.”

But while custodial relations among the parties have been settled for the time being, Lea said Boseman has not ruled out an appeal to the U.S. Court of Appeals and, if necessary, the U.S. Supreme Court.

“The intent of the adoption statute to protect the finality of adoptions was ignored,” Lea said. “This decision opens the door for people to attempt to void legal adoptions long after the timeframes set out in the statute.”

Lea said he agreed with the dissents of Justices Patricia Timmons-Goodson and Robin E. Hudson. Justice Timmons-Goodson wrote that Jarrell did not appeal the adoption decree within 30 days of entry of the decree, and she also “failed to move to set aside the decree within six months of a discovery that her consent to the adoption was obtained by fraud or duress.”

Because Jarrell waited “nearly two years after entry of the final adoption decree to challenge the adoption,” Timmons-Goodson wrote, “[t]he plain language of G.S. § 48-2-607(a) should have barred her claim.”

Justice Hudson wrote that the majority had created “an entirely new formulation of the law of subject-matter jurisdiction.”

Non-Chapter 48 adoption

Boseman and Jarrell petitioned for adoption in Durham County because, as Jarrell’s answer to Boseman’s suit explained, the district court there provided “a way” to validate same-sex adoptions. 

They requested in the petition and accompanying motions that Jarrell not be required to execute a written acknowledgment that the adoption decree would terminate her parental rights, as required by G.S. § 48-3-606(9).Boseman and Jarrell also requested non-enforcement of the statutory requirement of G.S. § 48-1-106(c) that the adoption decree sever the relationship between Jarrell and the child.

Jarrell’s consent to the adoption restated those conditions and was made contingent on the non-enforcement of statutory provisions.

When it learned that the Division of Social Services would not index the adoption, “the adoption court instructed the clerk not to comply with a statutory requirement that the clerk of court transmit a copy of the adoption decree to the division, instead ordering that the clerk securely maintain the file in the clerk’s office,” Newby wrote for the majority.

Tami L. Fitzgerald, an attorney for the American College of Pediatricians and other interested nonparties, wrote in an amicus brief that the adoption procedure “was a case of collusion by the parties and the district court judge to ignore and turn on its head the requirements of the adoption statutes.”

Wilmington attorney John M. Martin of Ward & Smith, who represented Jarrell, wrote that “the [Durham County] district court had no statutory authority to enter the same-sex adoption decree and, therefore, had no subject matter jurisdiction.” He argued that the adoption court “ignored its statutory boundaries and acted in excess of its authority in entering the decree of adoption.”

The Supreme Court agreed. Justice Newby wrote that the 2005 adoption proceeding “was not commenced under Chapter 48 of the statutes.”

Because the adoption petition “sought relief that does not exist under the statutes, the petition did not invoke the adoption court’s subject matter jurisdiction. All actions in the proceeding before the adoption court, including the entry of the decree, were therefore taken without subject matter jurisdiction.”

The adoption decree was void ab initio, and Boseman “is not legally recognized as the minor child’s parent,” the court said.

Justice Hudson wrote that at most the waiver of certain statutory provisions in the adoption proceeding “could amount to an error of law. Any such error would neither divest the trial court of, nor even implicate, its subject matter jurisdiction.”

In an amicus brief written on behalf of the American Civil Liberties Union and others, attorney Jonathan D. Sasser of Ellis & Winters wrote that the decision may upset what he called North Carolina’s “strong public policy in favor of honoring the ‘integrity and finality of adoptions.'”

Cathy C. Hunt, an attorney writing on behalf of the Evan B. Donaldson Adoption Institute, echoed Sasser’s sentiments. “[T]his court may, indeed, must interpret the adoption laws to effectuate their primary purpose of protecting the children that come before the courts,” she wrote.

Lea said that was the missing ingredient in the case. “The focus should have been on the child.”


Opinion Brief


Case name: Boseman v. Jarrell

Court: N.C. Supreme Court

Judges: Justice Paul M. Newby; Justices Patricia Timmons-Goodson and Robin E. Hudson, dissenting

Date: Dec. 20, 2010

Plaintiff-appellee’s attorney: James W. Lea III, Lori W. Rosbrugh and Holli B. Newsome, all of Lea, Rhine & Rosbrugh (Wilmington)

Defendant-appellant’s attorney: John M. Martin and Leslie G. Fritcher, both of Ward & Smith (Wilmington)

Issues: (1) Did the Court of Appeals err in determining that a adoption decree entered by the trial court was valid where, pursuant to the request of the parties, the plaintiff was made an adoptive parent of the minor child while not also terminating the defendant-biological mother’s relationship with the child? (2) Did the defendant act inconsistently with her paramount parental status such that the trial court could employ the “best interest of the child” standard in determining custody of the minor child?

Holdings: (1) Yes, the Court of Appeals erred in determining that the adoption decree was valid. That decree is void ab initio and the plaintiff is not a legally recognized parent of the child. (2) Yes, because the defendant acted inconsistently with her paramount parental status, the trial court did not err by employing the “best interest of the child” standard to reach its custody decision. The custody determination of the trial court is left undisturbed.

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