Married gay couples face maze of NC adoption laws

Jack Tharrington is 18 months old. He loves to flip through picture books, play soccer, push the keys on a laptop. He’ll be a big brother in June.

Jennifer and Anna Tharrington, both lawyers from Chapel Hill, are now expecting a little girl. Through “some creative in vitro fertilization,” Anna will be giving birth to Jennifer’s biological child. A year and a half ago, Jennifer delivered Jack, who is Anna’s biological child.

For many same-sex couples, having children under North Carolina law has been nothing short of complicated, even after the state’s gay marriage ban was struck down in October. Most state adoption laws presume that parenting occurs between a father and mother — forcing Jennifer and Anna and other gay couples in the state to jump through legal hoops to get equal rights to their children.

“All the family law statutes were written with just heterosexual marriage in mind,” said Jennifer Tharrington.

The Tharringtons were together for seven years before they got legally married in New York City in 2012.

“We both knew from the beginning that we wanted kids,” she said. “We did the last huge trip to Europe and drank wine for two weeks in Tuscany, and then we were looking back and we were like, ‘Time to be moms!’”

When Jack was born, Jennifer and Anna’s marriage was not legally recognized in North Carolina, meaning that only one partner could be the legal parent of their child. N.C. adoption laws do not allow unmarried couples to adopt, said UNC law professor Maxine Eichner.

She said the law allows stepparents to adopt a child. But before same-sex marriage was legalized, gay couples couldn’t use stepparent adoption — only one parent had legal rights to the children.

Other states offer the possibility of second-parent adoption without the couple having to be legally married, legal experts say.

Jennifer Tharrington, a family lawyer who has helped LGBT couples adopt, knew she and Anna could do a second-parent adoption in Florida and not have to go to a different state to have their child — which is the case in many states.

Jennifer has helped many clients through second-parent adoption in Florida and so was able to take an active role in her own process.

“Every single judge that I came across, either myself or my clients, was like, ‘God bless you and your family. It’s my honor to preside over this; I wish you didn’t even have to do this,’” she said.

Now that Jennifer and Anna’s marriage is recognized in the state, when their new baby is born they can go through stepparent adoption.

But it doesn’t mean North Carolina’s adoption process is without obstacles.

“There is a lot of uncertainty in the LGBT community regarding how same-sex adoption and birth certificates are going to operate subsequent to the marriage ban being struck down,” said Chris Brook, legal director of the N.C. American Civil Liberties Union.

Durham lawyer Milan Pham said N.C. couples must be married for six months before they are able to go through stepparent adoption. This period can be waived, but that decision depends on the clerk of court in each county.

Jennifer Tharrington said she has seen a lot of these cases with her clients, where some county clerks will waive the period and others will not.

“I mean sometimes these children are 14 years old — they’ve been waiting all these years to have an adoption option available, and now the clerk is making them wait another X number of months because that’s what the statute says,” she said.

James Langley, a respiratory therapist from Stokes, N.C., said he and his partner Chip adopted their son Ken in 2006. Langley first saw Ken in 2004 when he was about 2 years old. The boy came into the hospital so badly beaten that he had a hole in his stomach.

“We had an instant connection; I can’t quite explain that,” he said. “He grabbed my face and pulled my face down to his and that was it.”

From there, the long struggle of adopting Ken began. James Langley was the one to adopt Ken legally, since at the time he and Chip could not be married.

James Langley married Chip in October, after 23 years together and raising their son for eight years. Still, he said Chip can’t adopt their son officially for 120 days.

Another issue facing gay couples involves birth certificates, Brook said, as state law presumes that the names of an opposite-sex married couple go on their child’s birth certificate.

Birth certificates in the state currently only have space for a mother and a father, so in the case of a lesbian couple who is having a child, only the biological mother’s name can be put on the birth certificate.

Brook said there’s no reason the marriage presumption should not extend to same-sex couples.

“We need to make certain that same-sex couples are treated the same as opposite-sex couples in all of the extensions that go along with marriage and having a family,” said Brook, “including adoption proceedings, as well as being able to get both parents on the birth certificate.”

state@dailytarheel.com