Victory for lesbian mother in New York

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High court affirms rights of non-biological mother in civil union but still leaves harmful precedent standing

A decision today by New York State's highest court, in which all seven judges concurred, expands the rights of non-biological same-sex parents.

The New York State Court of Appeals ruled that Debra H., a non-biological mother represented by Lambda Legal, is a legal parent and can seek custody and visitation from her former partner, Janice R. Prior to the birth of their son, the couple had entered into a civil union in Vermont, where both partners are recognized as legal parents of a child born in the relationship.

The court ruled that "New York will recognize parentage created by a civil union in Vermont." Marriages of same-sex couples are not available in New York, but the state recognizes unions performed in other jurisdictions. The decision allows Debra to go to trial court and seek custody and visitation, as well as provide her son, now six and a half years old, with financial support. Unfortunately, however, a majority of the court stopped short of overruling its 1991 decision in Alison D. v. Virginia M., which held that only a person related by biology or adoption to a child qualifies as a parent. Today's decision adds one more category of parent, those in an out-of-state legally recognized relationships with a child's biological parent, but does not go far enough.

"This is a terrific outcome for our client," said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. "But it doesn't solve the dilemma for many New York children. You should not have to travel out of state to establish your legal relationship with your child. The New York legislature should follow the lead taken by many other states and pass legislation clarifying children's legal relationships with both their intended parents, regardless whether the parents have entered into a marriage or civil union."

Debra and Janice agreed to raise a family together in a two-parent household and conceived their son using in vitro fertilization. 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 nurture and care of a mother.

Janice had promised that Debra would formally adopt their child, and they met with an adoption lawyer prior to their son's birth. But when it came time for the second-parent adoption, Janice, who is 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 to parent her son, who moved with Janice into an apartment only a block away.

In May 2008, Janice abruptly refused Debra any further contact with the boy. Debra 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 a hearing. When Janice appealed, Lambda Legal entered the case in early 2009 on Debra's behalf.

Many prominent legal and child welfare experts filed friend-of-the-court briefs in support of the rights of non-biological parents in circumstances such as this, 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 boy's court-appointed attorney also asked the court to give Debra the opportunity to protect their relationship.

May 4, 2010