New York High Court Hears Argument in Lambda Legal Case to Protect Parent-Child Relationship Between Child and Non-Biological Mother

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"We hope for a high court decision that will save this six-year-old child from the tragic loss of his mother and bring the law in line with the reality for many New York families."
February 17, 2010

(New York, February 17, 2010) - Today, Lambda Legal argued before the New York State Court of Appeals on behalf of a non-biological mother after an intermediate appeals court denied her right to seek custody and visitation with, and provide financial support to the child she has parented with her former same-sex partner.

"This heartbreaking case calls on our high court to address the best interests of the child in sustaining his relationship with the person he has always known as his second parent," said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. "New York law governing children's rights to their non-biological parents needs to be clarified by the court. Many other states protect a child’s relationship with a non-biological, non-adoptive parent. This child should not be at risk of losing the person who has been his mother all his life."

Lambda Legal represents Debra H. in her effort to continue to parent the son she and her former partner, Janice R., planned together. The couple agreed they would raise a family together in a two-parent household and conceived their son using in vitro fertilization. Janice promised that Debra would formally adopt their child, and they met with an adoption lawyer prior to their son's birth. In 2003, before he was born, they entered into a civil union in Vermont, which at that time was the most legally significant relationship available to same-sex couples under U.S. law. Debra was by Janice's side throughout labor and delivery and cut their son's umbilical cord; her last name was included in their son's name on his birth certificate. In the years that followed Debra gave him the day and night love, nurture and care of a mother. When it came time for the second-parent adoption, Janice, an attorney, advised Debra "as a lawyer" that they didn't need to get the courts involved and Debra would always be the boy's parent. When the couple's relationship ended in 2006, Debra continued actively to parent her son, who moved with Janice into an apartment only a block away. Debra and her son were together daily, and she often put him to bed.

In May of 2008, when the child was 4 ½ years old, Janice abruptly refused Debra any further contact with him. Debra immediately filed for emergency joint custody and restoration of parental access. The trial court ordered interim regular ongoing visitation and allowed Debra's petition to proceed to trial. When Janice appealed, Lambda Legal entered the case in early 2009 on Debra's behalf. The case was argued in the Appellate Division, First Department in March 2009, and on April 9, 2009, the trial court decision was reversed. The New York Court of Appeals then accepted the case for appeal. Many prominent legal and child welfare experts have filed friend-of-the-court briefs on Debra's side, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, and 45 family law professors on the faculty of every law school in New York State.

The child's court-appointed attorney also asked the court to give Debra the opportunity to protect their relationship.

"This boy needs his mother. New York should apply long-established law recognizing and protecting the parent-child relationships of children reared by parents with no biological ties. We hope for a high court decision that will save this six-year-old child from the tragic loss of his mother and bring the law in line with the reality for many New York families," said Sommer.

Susan Sommer argued the appeal on behalf of Debra. She is joined by co-counsel Bonnie Rabin and Orrit Hershkovitz of Cohen, Hennessey, Bienstock & Rabin, P.C. Debra's son is represented by Anthony Parisi, III and counsel Jennifer Colyer of Fried, Frank, Harris, Shriver & Jacobson LLP, who argued the case in the Court of Appeals.

The case is Debra H. v. Janice R.