Recent court rulings legalizing gay marriage have also made it possible for gay couples to adopt. LGBT couples seeking to adopt often wonder how to get the process started.
Gay and lesbian spouses may adopt their partner’s children; they also may adopt children jointly. These questions and answers may help you as you plan. Please remember, however, that each adoption is unique, with varying circumstances. This information is not intended to be legal advice, and you are encouraged to speak with a qualified adoption attorney regarding your situation and the law’s impact on you.
1. How long do we have to be married before my spouse can adopt my child(ren)?
You must have been married at least six months before your spouse can petition to adopt your child as a stepparent. The time you resided together prior to getting married is not counted; it is six months from the date you are married.
If you were married in another state six or more months ago, you are eligible to petition to adopt your partner’s child. North Carolina will recognize a marriage legally performed in another state.
2. What documents are required for the adoption?
In order to complete the adoption, the following documents are required and must be originals or certified true copies:
- Marriage certificate
- Divorce decree for any previous marriage of the stepparent
- Divorce decree for any previous marriage of parent
- Birth certificate of child being adopted
- Any court order regarding custody, child support, etc.
- Any court order terminating or waiving parental rights of the non-spouse biological parent;
- A ten-year federal and state criminal record check on the petitioning spouse
- Child abuse registry clearances from each state in which the petitioning spouse resided in the prior five years
3. What if a court order on child custody or an approved parenting agreement was entered in another state?
4. Who must consent to a stepparent adoption?
The parent who has legal and physical custody must consent to the adoption by the nonparent spouse. If the child is over the age of twelve (12), he/she must consent as well.
5. What is required if the other ‘biological parent’ was a sperm/egg donor?
In most cases, egg and sperm donors waive their parental rights in documents executed prior to conception. If you have such a document, we anticipate the clerk will honor that document. If there was not an agreement signed by your egg/sperm donor, then his/her written consent will be required because he/she is a legal parent.
6. Once the non-custodial parent gives consent, can he/she change his/her mind?
Yes. The law allows a parent to revoke his/her consent within seven (7) days by furnishing written notice of revocation to the person specified in the consent. The seven days includes weekends and holidays. If a consent is obtained a second time, that consent is irrevocable.
A child (age 12 or older) consent may be revoked at any time prior to entry of the final order.
7. What happens between the time the adoption is filed and it is finalized?
Once the petition is filed, the court will order the preparation and filing of a report by either the agency that prepared the pre-placement assessment or the county department of social services. This report is required in all North Carolina adoptions with one exception: if the parent and stepparent have been married two (2) or more years, the report is not required. In the event the parties have not been married at least two years, the following is required:
(a) Two post-placement visits and a report to the Court is required
(b) A ten-year state and federal criminal records check and abuse registry clearance
The Department of Social Services has provided post-placement services at a modest cost for stepparent adoptions. Licensed North Carolina adoption agencies may also conduct post-placement visits and prepare reports meeting the clerk’s requirements.
8. When is the adoption final?
In North Carolina, the court will set a hearing or disposition of the petition after the petition is filed; this hearing will not be set until at least ninety days have passed since filing. Unless the court orders an extension, the petition will be heard less than six months after it was filed. If the petition is unopposed, a hearing is not required. If a hearing is necessary, the court will determine whether the adoption in the best interests of the child.
9. Do you need an attorney?
The laws governing the adoption process are quite complex and are very strictly applied. Engaging an experienced adoption attorney is an important part of ensuring that your adoption proceeds smoothly and is not subject to challenge. An adoption attorney will answer your questions about the law and the adoption process, assess the risks involved, discuss your options and develop a legally secure plan for adoption.
Parker Herring Law Group, PLLC is a full-service Raleigh family law firm. Our attorneys practice family law exclusively and handle cases regarding adoption, separation, child custody, child support, contested divorce, uncontested divorce, equitable distribution, alimony, alienation of affection, criminal conversation, domestic violence, spousal support, assisted reproduction, egg donation and surrogacy. If you need a North Carolina lawyer for help with your family law case, call us at (919) 821-1860. Our offices are conveniently located in downtown Raleigh, North Carolina. We offer family law representation to the residents of Raleigh and the counties of Wake, Durham, Chatham and Orange, including Cary, Apex, Holly Springs, Knightdale, Zebulon, Wendell, Garner, Brier Creek, Midtown, North Hills, Morrisville, Wake Forest, Rolesville, Fuquay-Varina, Durham, Chapel Hill, Carrboro, South Pointe, RDU and beyond. Call us today at (919) 821-1860.