We support LGBT and same-sex families
The attorney and staff at Haas & Associates, P.A. know that families come in many different forms. We help two-parent families, same-sex couples, single parents, multi-generational families, foster families and those related not by blood, but by love. Regardless of the form the family takes, our first concern is to achieve security for all families and to put the interests of the children first. Our goal is to develop creative and effective solutions to protect LGBT families in partnership, estate planning, adoption and parentage matters:
Forming, Securing and Protecting Families
Parentage and Custody
Although Second Parent Adoptions are not currently available in North Carolina, there are a number of ways that LGBT individuals and couples can become parents. For information regarding family formation through the use of egg donors, sperm donors, or surrogacy, please visit our assisted reproduction law page. For information about the availability of adoptions/adoption alternatives, please schedule a consultation. The attorneys at Haas & Associates, P.A. pride ourselves on keeping up with the ever-changing landscape of rights available to same-sex individuals and couples. Contact us today, as the number of options available may surprise you!
Custody in LGBT and Non-traditional Families
The same decision that struck down Second Parent Adoptions (Boseman v. Jarrell) in 2010, actually strengthened child custody rights for non-biological/legal same-sex parents. Other recent North Carolina case law has also shown a trend towards recognizing custodial rights in non-biological/non-legal parents. It is important for LGBT couples who are parents or looking to become parents to understand their rights and obligations regarding their children both during the relationship, and in the event that the relationship (between the parents) were to end.
- Legal Custody: Depending on your circumstances, joint legal custody may be an available option for LGBT parents. For more about custody, please visit our child custody page.
- Parenting Agreements: This agreement will lay out the parties' intentions regarding the rights and responsibilities of each parent both during the relationship, and if the relationship were to end. In analyzing North Carolina case law, it appears that judges have relied heavily on the existence and content of parenting agreements in making custody determinations in non-traditional families. For families in which both partners are intended to be parents, even if one partner is not biologically or legally related to the child, a parenting agreement is the greatest manifestation of your intent to be a two-parent family with permanent parent-child relationships between the children and both partners.
Information for Non-Biological/Non-Legal Parents
For custody disputes between two biological or two legal parents, the court examines the question of what custodial arrangement is in the best interests of the child. When there is a custody issue between a non-biological/non-legal parent and a biological/legal parent, the court will first have to find that the non-biological/non-legal parent has standing to pursue custody of the child. Only if the court decides that the non-biological/non-legal parent does have standing, will the court examine what is in the best interests of the child.
When deciding custody issues between a biological/legal parent and a non-biological/legal parent, North Carolina courts have often looked for evidence of the intent of the biological/legal parent to create a permanent parent-child relationship between the other party and the child. The existence of a parenting agreement is strong and clear evidence of that intent. However, the court will also analyze other factors, like those listed below, to examine the intent of the biological/legal parent. The more questions in which the non-biological/non-legal parent can answer "yes," the more likely it is that the court will find that you have standing to pursue custody of your child.
- Did you assist in choosing a donor or surrogate?
- Did the donor purposely have physical characteristics similar to yours?
- Did you contribute financially to the purchase of the donations?
- Did you sign a sperm donor, egg donor, gestational carrier, or other agreement?
- Did you attend medical appointments with the child’s biological/legal parent?
- Did you attend pre-natal appointments?
- Did you attend child birthing or other classes with the child’s biological/legal parent?
- Did you contribute financially to the prenatal medical treatment?
- Did you attend a baby shower with the child’s biological/legal parent? Did you hold yourself out as an intended parent at said event?
- Did your family behave like prospective grandparents, aunts, uncles, etc?
- Did you hold yourself out to the OB/GYN or other providers as an intended parent?
- Did you participate in decorating the nursery or other pre-birth preparations?
- Did you or the child’s biological/legal parent fill out any forms during the pregnancy where you are listed as “mother” “father” or “other parent?”
- Did you attend the birth?
- Did you hold yourself out to the hospital staff and personnel as the child’s other parent?
- Did you send out birth announcements where you were listed as a parent?
- Did members of your extended family attend the birth or visit the child in the hospital?
- Did you cut the umbilical cord?
- Did you feed or hold the child while the child was still in the nursery/hospital?
- Were you extended special privileges at the hospital by virtue of being the child’s other parent?
- Did you communicate with doctors or other medical personnel about the health or status of the child?
- Did you consent to any neonatal medical treatment for the child?
- Did you participate in selecting the child’s name?
- Does the child’s name have any relation to your name? (ie – your surname is the child’s first or middle name; your surname is hyphenated with the child’s surname; the child’s first, middle, or last name is a family name from your family, etc)
- Were you present to bring the child home from the hospital?
- Did you make any requests to be on the child’s birth certificate?
- Did you or the child’s biological/legal parent fill out any forms with the hospital where you are listed as “mother” “father” or “other parent?”
- Did you participate in adoption-related research?
- Did you jointly select an agency?
- Did you jointly select a birth mother, birth family, or child?
- Did you jointly select a country to adopt the child from (if international adoption)?
- Did you make any attempt to jointly adopt the child from the child’s home state/country? If not, why not?
- Were you interviewed by the adoption agency?
- Are you in the homestudy related to the adoption? If so, how are you described? (intended mother/father, partner, roommate, member of household, etc)
- Did you travel to pick the child up from his/her birth location?
- Did you participate in readying your household for the child? (nursery/bedroom, etc)
- Did you contribute financially to the costs of the adoption?
- Did you provide gifts/pictures/etc to the child prior to the adoption that identified you as an intended parent?
- Did you or the child’s legal parent hold yourselves out to the adoption agency as the child’s intended parents?
- Was your health status, income, or other data considered by the agency in determining whether to grant an adoption?
- Did you participate in selecting medical care providers for the child?
- Did you attend doctor appointments with the child?
- Did you or the child’s biological/legal parent fill out any forms with any medical provider where you are listed as “mother” “father” or “other parent?”
- Have you held yourself out to the child’s medical providers as the other parent?
- Do you have a Minor Healthcare Power of Attorney or Consent To Medical Treatment of a Minor or any other writing that grants you authority to make medical decisions for the child?
- Do you believe the child’s current doctor could identify you/ remember speaking or meeting with you?
- Do you believe the child’s medical providers consider you to be the child’s other parent?
- Did you attend any surgeries or hospitalizations of the child?
- Did/do you contribute financially to medical care for the child?
- Is the child on/has the child ever been on your health insurance?
- If the child has any special needs, are you educated about those needs?
- If the child has any special needs, are you trained to meet those needs?
- Have you missed work to stay at home with the child when he/she is sick?
- Did you participate in selecting daycare or school for the child?
- Do you visit the child at daycare/school?
- Have you chaperoned field trips or attended other classroom events?
- Have you met the child’s current teachers?
- Do you believe the child’s current teachers could identify you/ remember speaking or meeting with you?
- Are you aware of how the child is performing in school?
- Are you aware of the child’s favorite subject?
- Are you aware of the child’s stronger and weaker academic subjects?
- Have you assisted the child with his/her homework or test preparation?
- Have you attended parent/teacher conferences? (if so, how many/for how many years?)
- Are you a member of the PTA or other school organizations?
- Have you participated in the child’s school discipline? (Been called by school personnel for behavioral or disciplinary infractions? Participated in disciplinary meetings/suspensions/etc)
- Did you or the child’s biological/legal parent fill out any forms with any educational provider where you are listed as “mother” “father” or “other parent?”
- Are you an emergency contact on daycare/school paperwork?
- Are you authorized to pick the child up from daycare/school?
- Have you contributed to college preparation, selection, or a college fund for the child?
- Did you/do you contribute financially to the child’s educational needs? (tuition at daycare or private school, before/after school care, field trips, etc)
- Do you teach, lead, or coach any of the child’s extracurricular activities?
- Have you attended any of the child’s extracurricular activities (performances, classes, games, etc) If so, how many/ what percentage of the total?
- Have you contributed financially to the child’s extracurricular activities?
- Do you believe the child’s current extracurricular teacher/leader/coach could identify you/ remember speaking or meeting with you?
- Are you an emergency contact for any of the child’s extracurricular activities?
- Are you authorized to pick the child up from extracurricular activities?
- Did you or the child’s biological/legal parent fill out any forms with any extracurricular provider where you are listed as “mother” “father” or “other parent?”
Dissolution and Separation
Since same-sex marriage is currently invalid and unrecognized in North Carolina, same-sex couples are also unable to utilize North Carolina separation and divorce statutes to assist them with relationship dissolution. This means that when same-sex couples separate, they are often subject to North Carolina laws that were not designed to be used in domestic contexts, and often result in clumsy and inappropriate outcomes. That is why it is extremely important for same-sex partners to draft a partnership agreement that sets out each party's right and obligations both during the relationship, and in the event that the relationship dissolves.
Partnership agreements are particularly important for couples where:
- Real estate is owned jointly
- There is a great income disparity between partners
- A majority of the couple's assets and/or debts are titled solely in one partner's name
- One partner stays at home due to illness, disability, or to raise children
- The couple is in a long-term relationship
- The couple is not married in any state or country, and/or does not intend to marry, even if marriage were available
Here are some facts to consider regarding the dangers to same sex couples in not being able to utilize North Carolina separation and divorce statutes:
- Same sex couples cannot ask a court to equitably divide their jointly owned property. Instead, they may be subject to filing a "Petition to Partition" in which the court will divide the property based on each party's "contribution." This could mean that in a case where one partner arbitrarily wrote all of the mortgage checks from his account and the other partner arbitrarily wrote checks for other household and living expenses from his account, the court could find that the partner who happened to write the mortgage checks made 100% of the "contribution" to the property, and is therefore entitled to all of it. Partnership agreements can give guidance and control for how to handle jointly owned property in a fair and appropriate manner.
- There is currently no available way for one partner to compel a share of the other partner's retirement accounts. For different sex married couples, for example, all income earned during the marriage (regardless of who earned it or where it is deposited) is considered marital under NC law, which means that a wife can compel a marital share of her husband's retirement accounts (even if they are in his sole name) if his income earned during the marriage was deposited there. For same sex couples, it may be difficult or impossible for a partner to compel a share of any account in the other partner's sole name. This often means that if one partner was a stay-at-home partner or parent while the other partner earned income that was then deposited into his/her retirement or other sole accounts, the stay-at-home partner/parent may be denied a share of those accounts despite his/her contributions to the household and to the earning potential of the other partner. In addition, even if the couple agrees to split up their retirement accounts, it may be impossible to transfer any portion of certain retirement accounts to your same-sex partner tax-free. Partnership agreements can give guidance and control for how to handle asset division, as well as tax and retirement planning.In addition, even if the couple agrees to split up their retirement accounts, it may be impossible to transfer any portion of certain retirement accounts to your same-sex partner tax-free.
- Alimony is not available to same sex partners or spouses in North Carolina. Without an agreement to the contrary, same sex partners cannot compel spousal support, alimony, or palimony from their ex-partners. Partnership agreements can provide for post-separation support, if appropriate, and can set out the conditions and time-frame that support will be paid (* see an attorney and tax professional for advice regarding the implications of paying/receiving post-separation support from a same sex ex-partner).
- There is no clear way to compel a same sex partner to vacate the residence, and "landlord/tenant" law may be applied (inappropriately) as the only available means to compel eviction. Same sex partners should decide, in advance, who will move out, under what conditions, and in what time-frame if the relationship were to end. These agreements should be contained in a partnership agreement.
- There is no recognized "marital share" in "personal property" like furniture, electronics, and pets. These items should be discussed in a partnership agreement.
North Carolina has both a statutory law and a constitutional amendment, which ban the recognition of same-sex marriages and other same-sex unions in North Carolina. As a result, same-sex couples cannot marry each other in North Carolina, nor will their out-of-state same-sex marriages be recognized. Likewise, the marriages of same-sex couples married outside of North Carolina will not be given recognition in North Carolina. As a result of the statutory and constitutional bans, to date, same-sex marriages will not be afforded an opportunity to be dissolved in North Carolina. Click on the Same-sex Marriage/Divorce Chart to learn more about the status of same-sex marriages/divorces in North Carolina and other states, and consult with an attorney at Haas & Associates, P.A., to learn more about the possible ramifications of your current or anticipated marriage/divorce.
Transgender individuals incur a myriad of legal obstacles before, during and after their transition from one sex to another including—
It is important to obtain the proper protection before, during and after the process. The attorneys of Haas & Associates, P.A. are here to advise and help.