Rights of Same-Sex Parents in North Carolina

When a marriage breaks down, the question of child custody becomes inevitable. This can often be the most emotionally charged and even contentious part of a divorce. At the Woodruff Family Law Group, our compassionate and hard-working North Carolina child custody attorneys will let you know your rights as well as your options during this difficult time.

In Heatzig v. Maclean, a biological parent of children conceived through artificial insemination disputed the rights of her former same-sex domestic partner. The couple lived together and took care of the children for three and a half years. The relationship ended and the defendant left the shared home and took the children with her. The plaintiff filed a lawsuit seeking joint and physical custody of the children.

The court assessed the following factors: i) the plaintiff and the defendant made a joint decision to create a family unit; ii) the defendant deliberately identified the plaintiff as a parent; iii) the sperm donor was chosen based on certain physical characteristics similar to those of the plaintiff; iv) the plaintiff’s last name was used as one of the child’s last names; v) the plaintiff was present throughout the pregnancy and took part in the child’s birth; vi) both the plaintiff and the defendant were identified as parents at the child’s baptism; vii) the plaintiff was listed as a parent on the child’s school forms; and viii) the plaintiff had the authority to make medical decisions for the child. The Court noted the defendant had been trying to get pregnant for a while before she began her relationship with the plaintiff.

The court, having reviewed the facts, decided that the plaintiff was indeed a ‘parent’ under the law and entitled to share custody of the children. This determination was made using the ‘best interest of the child’ standard, which allows a judge to consider all relevant factors related to parenting when it comes to child custody determinations.

The Court of Appeals disagreed with the lower court and ruled that the plaintiff was not a legal parent, since only biological and adoptive parents are recognized as such under the law. Furthermore, the court explained that the trial court should not have applied the ‘best interest of the child’ standard in a matter involving a biological parent and a third party unless it first determined, based on clear and convincing evidence, that the biological parent waived her constitutional right to exclusive custody of the children by engaging in conduct that was inconsistent with her protected status as a parent.

The issue in the case was thus “whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision making authority to create a parent-like relationship with his or her child.” The case was remanded to the trial court for further consideration of whether the defendant had acted in a manner not consistant with her protected status and thereby waived her exclusive right to custody of the children.

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