After Amendment One, How Can Families Protect Themselves?

The passage of Amendment One in North Carolina last week was a setback for the protection of same sex and other unmarried families. While same sex marriage was already illegal by statute, Amendment One further prohibits civil unions and domestic partnerships. Amendment One will prohibit same sex marriages, civil unions, and domestic partnerships in North Carolina, and it will prohibit the recognition of out-of-state marriages, civil unions, and domestic partnerships. Yet, same sex and other unmarried families can still employ some legal means to protect their families.

With a married couple, any child born to a party of the marriage is presumed to be the child of the spouse. This presumption does not apply to unmarried couples. The part of the couple with a genetic connection to the child is presumed to be the parent. The part of the couple who gave birth to the child is presumed to be the parent also. With modern alternative reproduction technology, the genetic parent and the birth parent are not necessarily the same person. However, the other parent in an unmarried couple has no automatic protection in North Carolina.

Parents can pursue some in-state remedies, although they are limited in their effectiveness. The genetic or birth parent can name the other parent as guardian in a will, but wills can be revoked, and wills only speak at the time of death. The parents can go through a legal proceeding called a “standby guardian,” but that only becomes effective when the genetic or birth parent is incapacitated. The only other protection for unmarried parents in North Carolina is the legal doctrine of in loco parentis or de facto parentage, which means that a person who has acted as a parent has standing to sue the genetic or birth parent for custody. These are often highly-contested cases. None of these options confers the full, permanent rights of parenthood.

For greater protection, parents may choose to look outside of North Carolina. While North Carolina’s case law has prohibited same sex couples from adopting, other states do allow same sex couples to adopt. These adoptions may be done as full, second-parent adoptions or as step-parent adoptions. Also, states that have adopted the Uniform Parentage Law may give couples a parentage order, decreeing both parties to be parents of the child. However, since step-parent adoptions and parentage orders are predicated upon a couple’s relationship, Amendment One may be construed to void them. A full, second-parent adoption may be preferable to a step-parent adoption or a parentage order.

Unmarried partners may also protect their own relationship in several ways. The partners may enter into a living together agreement. Similar to a prenuptual agreement, this agreement spells out in advance how the parties are to maintain their finances, and how they are to divide property if there is a split. Partners may own title to houses, cars, and other property as joint tenants with right of survivorship. They may also name each other as beneficiary in financial instruments such as individual retirement accounts, mutual funds, or life insurance. They may name each other in their wills, powers of attorney, and health care powers of attorney. On the one hand, these protections are limited in comparison to the rights of marriage, but on the other hand, they have enjoyed long usage and their effectiveness is generally certain.

Even employing all of these legal protections is not a complete substitute for marriage, civil union, or domestic partnership. For example, because of the federal Defense of Marriage Act, same sex couples cannot avail themselves of the tax benefits of married couples. For the same reason, same sex couples cannot enjoy the spouse’s benefits conferred by government programs. Some protection is better than none at all, however.

This article has only skimmed the surface of a complicated area of law. This is an area of law that changes quite frequently. It is also an area of law that depends a great deal upon individual clients’ individual circumstances. Therefore, this article is not intended to be, and should not be taken as, legal advice, nor does it establish an attorney-client relationship. For legal advice tailored to your specific circumstances, please contact the Weidemann Law Firm, P.C., for a confidential appointment.