Is Adoption the Option for Same-Sex Couples?

As expressed in my earlier blog, because of DOMA, the issue of child custody, visitation and parental rights are sensitive topics and same-sex couples need to understand the legal ramifications when choosing whether to legally adopt a partner’s biological children.

Before the legalization or recognition of same-sex marriage, a non-biological person in a same-sex relationship was required to legally adopt their partner’s child in order to have legal standing to seek custody and/or visitation.

PRIOR TO NEW LAW

Prior to the new law, Courts were not in agreement as to whether the non-biological partner in a same sex marriage had standing to pursue custody and visitation, and if, even assuming standing, they had the same rights and powers as the biological parent.

In Matter of Alison D. v Virginia M., Alison sought visitation of a child from a same sex partnership without having first adopted the child. Alison  and Virginia established a relationship in September 1977 and began living together in March 1978. In March 1980, they decided to have a child and agreed that Virginia would be artificially inseminated. Together, they planned for the conception and birth of the child and agreed to share jointly all rights and responsibilities of child-rearing. In July 1981, Virginia gave birth to a baby boy, A.D.M., who was given Alison’s last name as his middle name and Virginia’s last name became his last name. Alison shared in all birthing expenses and, after A.D.M.’s birth, continued to provide for his support. During A.D.M.’s first two years, Alison and Virginia jointly cared for and made decisions regarding the child.

In November 1983, when the child was 2 years and 4 months old, the parents terminated their relationship and Alison moved out of the home they jointly owned. The parties agreed to a visitation schedule whereby Alison continued to see the child a few times a week. By this time, the child had referred to both parties as “mommy”. Alison’s visitation with the child continued until 1986, at which time Virgina bought out Alison’s interest in the house and then began to restrict Alison’s visitation with the child. In 1987 Alison moved to Ireland to pursue career opportunities, but continued her attempts to communicate with the child. Thereafter,Virgina  terminated all contact between Alison and the child, returning all of Alison’s gifts and letters. No dispute exists that Alison is a fit parent.

The Court of Appeals denied visitation to Alison on the grounds that as a biological stranger to the child she could not be deemed a “parent” under DRL 70. The Court expressed that statutes existed under the Domestic Relations Law for visitation rights of siblings and grandparents.  The Court also rejected the application of equitable estoppel.

The decision of Alison D., precluded a same sex non-biological party from ever having standing.

In Matter of Jacob, the Court of Appeals held that a same sex partner of a biological parent was allowed to become a parent through adoption.

In Behrens v Rimland, the Second Department rejected the application of the doctrine of equitable estoppel and determined that regardless of the fact that the parties held out the Petitioner as the child’s parent for the child’s entire life, without a legal adoption, the Petitioner did not have standing to seek visitation with the child.

AFTER THE NEW LAW

Since the legalization of same sex marriage, there has been limited litigation with respect to the issues regarding children.

In Matter of Adoption of a Child Whose First Name is Sebastian, the Court noted that there is a presumption of legitimacy that arises as a result of the birth of a child before or during a legal marriage. Specifically, Section 417 of the Family Court provides that “a child born of  parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage.”

In Matter of Adoption…Sebastian, the Court required an adoption because, even though, New York would recognize a marriage performed outside the State and therefore recognize the children as the children of both the parties to the marriage, if the parties and children traveled to a state where same sex marriage are not recognized it could cause potential problems.

WHERE DO WE STAND?

There have been no cases litigated in NY where the parties to a same sex marriage sought a determination regarding custody and visitation of a child where one party a non-biological parent.

However, some things that I think same sex couples should be aware of if the non-biological partner does NOT adopt the biological partner’s child:

1. Problems may arise for the non-biological partner when parties and their children travel or move outside the state of NY to a state, province or country that does not recognize their marriage AND;

2. Although NY has a presumption of legitimacy, this presumption is rebuttable and it is unclear how a NY Court will handle same-sex parents, where one parent can prove through DNA testing that the other parent is not the biological parent of the child.

Children are often one of the most litigated aspects of a divorce.  Therefore, it is imperative that couples understand the serious consequences that may arise if they choose not to adopt their partner’s children.