North Carolina judges reverse child support ruling in same-sex IVF case

A North Carolina Court of Appeals ruled Tuesday that someone acting as a parent cannot be required to pay child support in the state without being the actual parent or without signing a formal agreement.

A split three-judge panel reversed a ruling from a local judge that stated that the ex-partner of a child’s mother is required to pay the biological mother child support. E’Tonya Carter gave birth to the child through in vitro fertilization (IVF) while her ex-partner Tricosa Green did not.

“Based on long-established North Carolina law, the short answer is no: Plaintiff cannot be required to pay child support unless she is the child’s mother or father or she agreed formally, in writing, to pay child support,” the opinion reads.

According to the decision, the two women were “in an ‘on again off-again’ romantic relationship” and planned to have a child together. In 2015, both Green and Carter signed an IVF agreement through an IVF program in New York and Carter gave birth in November 2016 in Michigan.

Only Carter was listed on the birth certificate as the mother since Green could not be under Michigan law.

The two women, who were never married, had joint legal and physical custody of the child for years after they ended their romantic relationship and both moved to North Carolina. Carter then sought child support for the child, but Green maintained that she was a de facto parent, not a biological or adoptive one, and not liable for child support under state law.

 The Associated Press noted that the child support law means that the “mother” and “father” must share the primary liability for child support.

Mecklenburg County District Court Judge J. Rex Marvel ruled in 2021 that the mother and father clause should be applied in a “gender-neutral” way to this case, according to the AP.  Marvel directed Green in 2021 to pay nearly $250 per month in child support and to continue to pay for the child’s health insurance premiums. Green later appealed the decision.

The Tuesday opinion, written by Court of Appeals Judge Donna Stroud, pushed back on Marvel’s ruling and noted that the previous ruling applied the law differently to the two women as opposed to a heterosexual couple.

“But based on the well-established law discussed below, the trial court did not have a legal basis to order Plaintiff to pay child support,” Stroud wrote, noting that the trial court’s interpretation of the law “created a different result than would have been required under the law if the parties to this case had been a heterosexual couple.”

Stroud argued that the law has “the same application to both same-sex unmarried couples who have a child by in vitro fertilization as to unmarried heterosexual couples who have a child by in vitro fertilization if the male partner is not the donor of the sperm.”

She added that “neither can be required to pay child support.”

The Associated Press contributed.