Many of you tell me you tried but could not finish reading the article I posted yesterday, written by Meredith Smith, Asst. Prof. at the UNC School of Government. Professor Smith offers a good, timely explanation affecting many folks who are recently married as a result of changes in North Carolina recognition of the rights of same-sex couples.
Professor Smith’s blog post offers some good legal explanation. Even so, I’m writing this very brief recital as a way to (hopefully) make it more accessible to you.
The basics of the article: Professor Smith describes the judicial authority clerks have over adoption…and whether that authority can be usurped by the Department of Social Services (DSS).
How does an adoption work? A county clerk reviews, processes, and decides whether an adoption should be granted. The clerk then sends the entire file to DSS, which reviews the adoption file. If everything looks swell, DSS tells Vital Statistics to create a new birth certificate with the new adoptive name and new adoptive parents. If something isn’t perfect, DSS will send the file back to the clerk to make changes. DSS has the authority only to send the file back or send it along to Vital Statistics. DSS cannot make changes to an adoption file.
Professor Smith’s article posits that DSS has no authority to conduct this review at all. Indeed, the statute governing DSS’ role in adoptions is limited. And at least one analogous Court of Appeals case was decided to disallow the overstepping of power of an administrative division like DSS.
Historically, clerks have relied on DSS to review adoption files for errors, such as typographical mistakes. Hard-working, attentive efforts benefit from a second set of careful eyes.
However, through the last years (prior to the October, 2014 change of law), DSS has unilaterally amplified their exercise of authority. For example, they refused to process same-sex adoption decrees filed as “second parent” adoptions.”
Professor Smith argues that DSS does not have this authority. Professor Smith also outlines one possible legal option for clerks in response to DSS refusal to process adoption decrees. Apparently, this problem also comes up in other clerk-authorized actions that require administration by DSS…such as name changes, child legitimations, and proof of birth orders.
Many of the good folks recently married as a result of North Carolina’s change in marriage laws have been raising kids together as actual parents for many years. For example, my current pool of active same-sex adoption clients averages 11.7 years in relationship and 3.5 years parenting together. The law change in October, 2014 has meant that these committed couples were finally able to get married in NC. Also it meant that they could file a stepparent adoption to become legal parents. This move benefits their children in multiple substantive (constitutional) ways.
Recently, the issue Professor Smith outlines has vexed me in same-sex stepparent adoptions of couples recently married less than two years. I won’t speak about this in depth here, but I’ll be writing more about this in future blogs. I’ll say this: I am in discussion with several clients and clerks affected by recent DSS refusals to process these adoption files. We are going to fix the problem, hopefully without eliminating the benefits. My job is to figure out the best long-term fix.
This is a discussion we are likely to be having for the next several years. Stay alert for more from me….