LGBTQ Families and Stepparent Adoption: What You Need to Know in North Carolina

As a family law attorney in North Carolina, I’ve seen many parents assume that their legal status as a parent is secure, especially when the family unit remains intact. However, for LGBTQ families, this assumption doesn’t always hold true. The question of parentage can be complex, particularly when one parent is biological, and the other is not. In a recent decision Green v. Carter, the North Carolina Court of Appeals reaffirmed the principle: custody rights alone do not automatically grant someone legal parentage. For LGBTQ families, this legal reality can lead to challenges.

Understanding Parentage in North Carolina: The Impact on LGBTQ Families

In North Carolina, the laws surrounding parentage traditionally rely on two main criteria: genetics and marital status. For LGBTQ families, this can create a legal gap. When children are conceived through artificial reproductive technology (ART), only the biological parent is initially recognized as a legal parent. The other partner, even though they may be actively involved in raising the child, is often seen as a “third party” with loco parentis status (meaning “in the place of a parent”). While this loco parentis status can sometimes grant the non-biological parent custodial rights, it does not confer full parental rights under the law. This creates a complicated situation for LGBTQ parents who wish to establish legal parentage for both partners.

The Challenge of North Carolina’s Parentage Laws

The laws in North Carolina have not kept pace with advancements in ART. There is one statute that addresses children conceived with the assistance of ART (i.e., artificial insemination), and it was originally designed for heterosexual couples, specifically “husband and wife.” After the Obergefell decision legalized same-sex marriage, North Carolina amended its laws to interpret terms like “husband and wife” as including any two legally married individuals. However, the statute still only applies to a narrow set of circumstances, mainly when a child is conceived by way of artificial insemination, the parents are married, and both spouses sign a written agreement. Even then, there is limited case law to ensure this will always be applied consistently for same-sex couples.

What happens when a child is conceived using in vitro fertilization (IVF) or when there is no written agreement between spouses? Or if the couple was not married at the time of conception or never married? In these cases, determining who is legally recognized as a parent is often a complex and uncertain matter—especially when the existing laws were not designed to address the realities of modern family structures, including those of LGBTQ families.

Stepparent Adoption: A Solution for Many LGBTQ Families

For LGBTQ families looking to ensure both parents are legally recognized as parents, stepparent adoption can be a viable solution. This process allows the non-biological parent to legally adopt the child of their spouse, establishing them as a legal parent under North Carolina law.

The basic requirements for stepparent adoption in North Carolina are as follows:

• You must be married to the child’s biological or legal parent for at least six months.
• You must live with the child and your spouse.
• If the child is 12 years or older, they must consent to the adoption.
• You must have lived in North Carolina for at least six months before filing the petition.
• If you’ve been married for more than two years, you may not need a home study.

Why You Should Consult with an Attorney

Given the complexities of North Carolina’s laws around parentage and the lack of comprehensive legislation addressing the needs of LGBTQ families, it is important to consult with an attorney that can explain the difference between custody and parentage, and how to protect your family. Reach out to Amanda B. Cannavo to schedule a consultation and learn how we may assist with your Stepparent Adoption to protect both parents’ rights.