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Judges limit North Carolina child support law requirement in IVF case involving same-sex couple

NC Court of Appeals Building
Dave DeWitt
N.C. Court of Appeals Building

Someone acting as a child's parent can't be ordered to pay child support in North Carolina unless the person is an actual parent or has formally agreed to provide such compensation, the state Court of Appeals ruled Tuesday in a case involving an unmarried same-sex couple.

A divided three-judge panel reversed a lower court that declared the ex-partner of the child's mother, who gave birth in 2016 through in vitro fertilization, as a parent within the state's child support laws. The local judge directed Tricosa Green, who didn't give birth, to pay the biological mother about $250 per month and keep covering the child's health insurance premiums.

The two women have had joint legal and physical custody for years. Child support law establishes that a "mother" and "father" share the primary liability for child support. In 2021, Mecklenburg County District Court Judge J. Rex Marvel wrote that it was appropriate that mother and father apply in this dispute in a "gender-neutral way," and that "the duty of support should accompany the right to custody in cases such as this one."

But Marvel's order, if allowed to stand, would treat unmarried same-sex couples using IVF differently than unmarried heterosexual couples in which the male partner is not the sperm donor, Court of Appeals Judge Donna Stroud wrote in the prevailing opinion.

While state law instructs when statutes can have a gender-neutral interpretation, it doesn't apply to the child support law, Stroud said. Green does not meet the plain definition of the child's biological or adoptive mother and had signed no formal financial support agreement, she added.

Marvel's attempt" to impose one obligation of a mother or father – child support – upon (Green), to go along with the benefit of joint custody already conferred upon her is understandable," Stroud wrote. "We fully appreciate the difficult issues created by IVF and other forms of assisted reproductive technology, but only the General Assembly has the authority to amend our statutes to address these issues."

Green and E'Tonya Carter had a romantic relationship and participated in an IVF program in New York, selecting a sperm donor and with Green paying for the process, according to case documents.

Carter gave birth to a girl in 2016 in Michigan, where Green couldn't be listed on the birth certificate. Their romantic relationship ended and they all moved to North Carolina. Green sought custody, leading to the joint custody agreement in 2019. Then Carter sought child support, saying that Green had acted as a parent since before the child was born.

Marvel referred to Green as the "biological mother" and Carter the "de facto mother" who had "enthusiastically and voluntarily held herself out as a parent," attending the child's doctor appointments and providing diapers and clothes.

Stroud wrote that someone acting in the place of a parent, like Green, may also be secondarily liable for support, but a judge can't order support unless the person "has voluntarily assumed the obligation of support in writing."

Judge Julee Flood joined in Stroud's opinion. In a dissent, Judge Toby Hampson said that Marvel's order should be upheld, citing a 1997 state Supreme Court opinion involving a unmarried heterosexual couple that he said found that a man acting like a father may acquire a duty to support a child.

Tuesday's majority "effectively holds that — as it relates to an unwed same-sex couple— the duty of support, as a matter of law, does not accompany the right to custody in cases such as this one," Hampson wrote.

The state Supreme Court could agree to consider an appeal of Tuesday's 2-1 decision.

The case and Tuesday's opinions have nothing to do with details of the IVF procedure or frozen embryos. They have received national attention since the Alabama Supreme Court ruled in February that couples whose embryos were destroyed accidentally at a storage facility could pursue wrongful death lawsuits. Alabama's legislature has since enacted a law shielding doctors from potential legal liability for such destruction.

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