Monday, April 10, 2006

NH Adoption -- Per County

The U.S. equality granularity is by state. That is, except in New Hampshire. There, same-sex couples might have to move across county lines to get a fair shake in adoption proceedings.

You might think the laws and process gelled seven years ago, when the Granite State repealed its ban on gay adoptions. Think again. The Concord Monitor reports on scattered pockets of adoption discrimination, county by county.

Legal Stuff: GLAD has a FAQ on the related laws. Also, the statute that allows this muddle is 170- B:4. It (apparently ambiguously) states:
Who May Adopt.

Any of the following adults may adopt:
I. Husband and wife together.
II. An unmarried adult.
III. The unmarried parent of the adoptee.
IV. A married person without that person's spouse joining as a petitioner, if the adoptee is not the petitioner's spouse; and if any one of the following circumstances apply:
(a) The petitioner's spouse is a parent of the adoptee and assents to the adoption;
(b) The petitioner and his or her spouse are legally separated;
(c) The failure of the petitioner's spouse to join in the petition is excused by the court by reason of prolonged unexplained absence, unavailability, or circumstances constituting an unreasonable withholding of assent; or
(d) The petitioner's spouse assents to the adoption and the adoptee is over the age of 18.
Of course, the gotcha there is the same as in states with DoMA laws or amendments or civil-unions. Oh, you want the same rights as a married couple? No, you're not married and we have no intention of letting you marry. Gotcha!

The way it works in N.H. is in Belknap County, two partnered women can adopt a child together, providing they convince the judge "they have kept a loving and stable home." In Merrimack County, they don't fit the single-adult definition, as far as the probate court is concerned. One single adult, okay. So, the partner of the adopter is out of luck and out of legal rights.

Merrimack County Probate Judge Richard Hampe said, "
I think all judges in good faith are trying to interpret the statute correctly. It's just that the statute is not all that clear. It really should be resolved." To date, no couples denied joint adoption have rocked the raft by suing. One couple cited by the Monitor was afraid that if the state Supreme Court sided with a restrictive judge that it might lead to a statewide ban again.

Six of the nine counties do permit gay or straight unmarried couples to adopt. As Coos County Probate Judge David King puts it, "If our goal is a unified and stable household, and I think it should be, I think we have to be a little open-minded." He basis his view not on a literal reading of the sparse law, but on the state Supreme Court opinion by the then Justice David Souter that the deciding factor in an adoption was whether the home is "unified and stable."

The open-minded counties are Balknap, Carroll, Coos, Rockingham, Strafford and Sullivan. The restrictive ones are Cheshire, Grafton, Hillsborough, and Merrimack.

An option for those in the restrictive counties, other than moving, is to seek legal guardianship instead. All counties can approve dual guardianship. Unfortunately, with the weaker legal category, a child cannot share both parents' disability, health and inheritance benefits.

Also, with guardianship, the couple must file a report annually with the county probate court confirming that they continue to provide the child with a good home. Concord Attorney Ann McLane Kuster adds, "Guardianships come and go. The court can change guardianship but not adoption."

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