New York Recognizes Parental Status of Woman in Vermont Same-Sex Civil Union

Who qualifies as a parent when one member of a same-sex couple has a child after entering into a same-sex civil union under the laws of another state? If the biological mother's partner does not adopt the child, does she have any rights concerning the child if the parties go their separate ways? Do the answers change if the child is conceived before the civil union takes place? These were the questions with far-reaching consequences the Court of Appeals recently answered in Debra H. v. Janice R., — N.E.2d —-, 2010 WL 1752168, 2010 N.Y. Slip Op. 03755, N.Y., May 04, 2010 (NO. 47).

Relationship Is Cut Off

The respondent in the case was Janice R., the biological mother of a six-year-old boy. The child was conceived through artificial insemination and born in December 2003, one month after the respondent and petitioner Debra H. entered into a Vermont civil union. The two women had met in 2002. The petitioner wanted to legally adopt Janice R.'s son, and she asked the boy's mother to allow it several times, but the mother refused. Still, Debra H. acted as the boy's second parent, and considered him to be her son.

The parties separated in the spring of 2006. The boy's mother allowed her former partner to visit with him three times per week, during specified hours, under supervision. She also allowed the child to take daily telephone calls from Debra H. However, after two years of this arrangement, Janice R. scaled back the number of visits and phone calls, and by May 2008 had discontinued these contacts completely. Immediately after she'd been cut off, Debra H. brought a proceeding by order to show cause seeking to restore her access to the boy and to be awarded shared decisionmaking authority concerning his upbringing.

Proceedings

At the hearing, on July 10, 2008, the petitioner attempted to distinguish the Court of Appeals case of Matter of Alison D. v. Virginia M., 77 NY2d 651 (1991), which held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. She pointed to the high court's later decision in Matter of Shondel J. v. Mark D., 7 NY3d 320 (2006), in which the court said equitable estoppel could be invoked to prevent a non-biological father from avoiding support payments by disclaiming fatherhood of a child he had been lead to believe for years was his own. The court in Shondel J. came to its conclusion on the basis that it would not be in the child's best interest to allow the man she had thought was her father to disappear from her life and stop supporting her. Debra H. argued that, by the same reasoning, nonbiological and nonadoptive parents should have the right to invoke equitable estoppel to secure visitation or custody, notwithstanding Alison D.

In October 2008, Supreme Court ruled that “it [was] inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support, but preclude a nonbiological parent from invoking [equitable estoppel] against the biological parent in order to maintain an established relationship with the child” since, in both cases, “the court's primary concern should be furthering the best interests of the child.” This did not conclude the issue, however, as the parties were in dispute as to whether Debra H.'s relationship with the boy was such that she stood in loco parentis to him, and thus had standing to seek visitation. Therefore, a hearing on the issue was ordered. If such standing were established, another hearing would be needed to determine if it was in the child's best interests to award Debra H. custodial or visitation rights.

The Appellate Division unanimously reversed on the law, vacated Supreme Court's order, denied the petition, and dismissed the proceeding. The court found that although Debra H. had been a loving parent to the child for two and a half years, she had not adopted him. Therefore, in accordance with Alison D., since she was neither a biological nor an adoptive parent, she lacked standing to seek custody or visitation.

To the High Court

Although the Court of Appeals ultimately determined that Debra H. had the right to seek the custody and visitation she wanted with Janice R.'s biological son, it did not do so by overturning Alison D. Instead, the court reaffirmed its holding in Alison D. The court noted that New York's legislature has, through Domestic Relations Law ' 70, generally limited to biological or adoptive parents the right to seek custody of a child whose parent is not unfit. Where the legislature has deemed it appropriate to allow others to seek visitation ' as it did in DRL ” 71 and 72 (permitting siblings and grandparents respectively to petition for visitation) ' it has specifically done so by enacting new laws. The legislature has not, however, enacted a law to permit those who are not biologically related to a child to seek visitation or custody. The Court of Appeals found it was not its place to do so here. The court pointed out that a major problem would be created if courts, unaided by statutory guidance, used their own judgment to interfere with parents' constitutional right to raise their children as they see fit at the behest of biological strangers claiming a close relationship with the child. In this regard, the court stated, “The flexible type of rule championed by Debra H. threatens to trap single biological and adoptive parents and their children in a limbo of doubt. These parents could not possibly know for sure when another adult's level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party.” This problem was not implicated in Shondel J. as, there, the biological mother had wanted to keep the non-biological second parent in the picture.

The petitioner was not left without hope, however, because although Alison D. was a nearly identical case to the present one, it was different in one crucial respect: The parties in Alison D. were not legally joined in marriage or state-sanctioned civil union. It is this distinction that preserved Debra H.'s chance to prove that she has standing to seek court-ordered continuation of some type of relationship with Janice R.'s biological son.

The court, taking into account the former couple's Vermont civil union, said there were two issues to decide: “whether Debra H. is
[the boy's] parent under Vermont law and, in the event that she is, whether as a matter of comity she is his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing.”

Vermont's Civil Union Statute

Vermont's civil union statute confers on parties to a civil union “all the same benefits, protections and responsibilities under law ' as are granted to spouses in a marriage” (Vt Stat Ann tit 15, ' 1204 (a)). Vermont law also says that those who enter into civil unions there share the same rights “with respect to a child of whom either becomes the natural parent during the term of the civil union,” as “those of a married couple” (Vt Stat Ann tit 15, ' 1204 (f)). And Vermont's Supreme Court relied on these provisions when it held in Miller-Jenkins v. Miller-Jenkins, 180 Vt. 441 (2006), cert denied 550 U.S. 918 (2007), that a child born by artificial insemination to one partner of a civil union should be deemed the other partner's child under Vermont law for purposes of determining custodial rights following the civil union's dissolution. In that case, the court decided children born during a civil union should be treated in the same way as children born during a marriage who are conceived as a result of artificial insemination; in the eyes of the law, they should be considered the natural children of both partners, even absent a biological connection. And the timing of the artificial insemination does not matter, so long as the parties are married, or joined in civil union, at the time of birth. Id.

New York Courts

Having decided in the affirmative the question of whether Vermont would treat Debra H. as the child's parent, the final question then became whether New York courts should accord comity to Vermont and recognize Debra H. as the child's parent under New York law.

The court noted that New York's determination of whether effect is to be given foreign legislation is made “by comparing it to our own public policy; and our policy prevails in case of conflict.” Ehrlich-Bober & Co. v. University of Houston, 49 NY2d 574, 580 (1980). The court locates the public policy of the state in “the law as expressed in statute and judicial decision” and also considers “the prevailing attitudes of the community.” Id. Even in the case of a conflict, however, New York's public policy may yield “in the face of a strong assertion of interest by the other jurisdiction.” Id.

As New York already employs the doctrine of comity to recognize parentage created by an adoption in a foreign nation, the court said, “We see no reason to withhold equivalent recognition where someone is a parent under a sister state's law.” The court went on to state, “Janice R., as was her right as [her son's] biological parent, did not agree to let Debra H. adopt [her son]. But the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State's public policy.”

Therefore, the court accorded comity to Vermont's determination that Debra H. is Janice R.'s biological son's parent. That makes is possible for Debra H. to seek visitation and custody at a best-interest hearing before a New York courts.

Conclusion

Susan L. Sommer, an attorney for Lambda Legal Services in Manhattan, who represented Debra H., was disappointed that the Court of Appeals chose not to overturn Alison D. She said in a statement following the decision, “This is a terrific outcome for our client. 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 of whether the parents have entered into a marriage or civil union.”

Justice Carmen Beauchamp Ciparick, in a concurring opinion, echoed that sentiment, stating, “In Alison D., the dissent predicted that the impact of the decision would be felt 'far beyond th[e] particular controversy' of that case, by a 'wide spectrum of relationships,' including 'heterosexual stepparents,' 'common-law' and 'nonheterosexual partners' ' , and even 'participants in scientific reproduction procedures'” (77 NY2d at 657-658 (Kaye, J., dissenting)). That prediction has been borne out. In countless cases across the state, the lower courts, constrained by the harsh rule of Alison D., have been forced to either permanently sever strongly formed bonds between children and adults with whom they have parental relationships (see, e.g., Matter of Janis C. v. Christine T., 294 AD2d 496, 496-497 (2d Dept 2002), lv denied 99 NY2d 504 (2002); Gulbin v. Moss-Gulbin, 45 AD3d 1230, 1231 (3d Dept 2007)) or engage in deft legal maneuvering to explain away the apparent applicability of Alison D. (see, e.g., Jean Maby H. v. Joseph H., 246 AD2d 282, 283, 288-289 (2d Dept 1998); Beth R. v. Donna M., 19 Misc 3d 724, 734 (Sup Ct, New York County 2008)).

Although an imperfect solution, the Court of Appeals' decision in Debra H. raises some hope for many who have been cut off from children they've raised as their own. Unless and until New York's legislature expands the definition of individuals who may seek visitation and custody, those who want to take on a parental role need to know they have just two options if they want to guarantee their rights: They must either be married or joined in a civil union at the time a child is born to their partner or they must adopt the child after birth. Without these legal safeguards in place, people who consider themselves mothers and fathers are at the mercy of the biological parent if their relationship falls apart.

Janice G. Inman is Editor-in-Chief of this newsletter.

Who qualifies as a parent when one member of a same-sex couple has a child after entering into a same-sex civil union under the laws of another state? If the biological mother's partner does not adopt the child, does she have any rights concerning the child if the parties go their separate ways? Do the answers change if the child is conceived before the civil union takes place? These were the questions with far-reaching consequences the Court of Appeals recently answered in Debra H. v. Janice R., — N.E.2d —-, 2010 WL 1752168, 2010 N.Y. Slip Op. 03755, N.Y., May 04, 2010 (NO. 47).

Relationship Is Cut Off

The respondent in the case was Janice R., the biological mother of a six-year-old boy. The child was conceived through artificial insemination and born in December 2003, one month after the respondent and petitioner Debra H. entered into a Vermont civil union. The two women had met in 2002. The petitioner wanted to legally adopt Janice R.'s son, and she asked the boy's mother to allow it several times, but the mother refused. Still, Debra H. acted as the boy's second parent, and considered him to be her son.

The parties separated in the spring of 2006. The boy's mother allowed her former partner to visit with him three times per week, during specified hours, under supervision. She also allowed the child to take daily telephone calls from Debra H. However, after two years of this arrangement, Janice R. scaled back the number of visits and phone calls, and by May 2008 had discontinued these contacts completely. Immediately after she'd been cut off, Debra H. brought a proceeding by order to show cause seeking to restore her access to the boy and to be awarded shared decisionmaking authority concerning his upbringing.

Proceedings

At the hearing, on July 10, 2008, the petitioner attempted to distinguish the Court of Appeals case of Matter of Alison D. v. Virginia M. , 77 NY2d 651 (1991), which held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. She pointed to the high court's later decision in Matter of Shondel J. v. Mark D. , 7 NY3d 320 (2006), in which the court said equitable estoppel could be invoked to prevent a non-biological father from avoiding support payments by disclaiming fatherhood of a child he had been lead to believe for years was his own. The court in Shondel J. came to its conclusion on the basis that it would not be in the child's best interest to allow the man she had thought was her father to disappear from her life and stop supporting her. Debra H. argued that, by the same reasoning, nonbiological and nonadoptive parents should have the right to invoke equitable estoppel to secure visitation or custody, notwithstanding Alison D.

In October 2008, Supreme Court ruled that “it [was] inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support, but preclude a nonbiological parent from invoking [equitable estoppel] against the biological parent in order to maintain an established relationship with the child” since, in both cases, “the court's primary concern should be furthering the best interests of the child.” This did not conclude the issue, however, as the parties were in dispute as to whether Debra H.'s relationship with the boy was such that she stood in loco parentis to him, and thus had standing to seek visitation. Therefore, a hearing on the issue was ordered. If such standing were established, another hearing would be needed to determine if it was in the child's best interests to award Debra H. custodial or visitation rights.

The Appellate Division unanimously reversed on the law, vacated Supreme Court's order, denied the petition, and dismissed the proceeding. The court found that although Debra H. had been a loving parent to the child for two and a half years, she had not adopted him. Therefore, in accordance with Alison D., since she was neither a biological nor an adoptive parent, she lacked standing to seek custody or visitation.

To the High Court

Although the Court of Appeals ultimately determined that Debra H. had the right to seek the custody and visitation she wanted with Janice R.'s biological son, it did not do so by overturning Alison D. Instead, the court reaffirmed its holding in Alison D. The court noted that New York's legislature has, through Domestic Relations Law ' 70, generally limited to biological or adoptive parents the right to seek custody of a child whose parent is not unfit. Where the legislature has deemed it appropriate to allow others to seek visitation ' as it did in DRL ” 71 and 72 (permitting siblings and grandparents respectively to petition for visitation) ' it has specifically done so by enacting new laws. The legislature has not, however, enacted a law to permit those who are not biologically related to a child to seek visitation or custody. The Court of Appeals found it was not its place to do so here. The court pointed out that a major problem would be created if courts, unaided by statutory guidance, used their own judgment to interfere with parents' constitutional right to raise their children as they see fit at the behest of biological strangers claiming a close relationship with the child. In this regard, the court stated, “The flexible type of rule championed by Debra H. threatens to trap single biological and adoptive parents and their children in a limbo of doubt. These parents could not possibly know for sure when another adult's level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party.” This problem was not implicated in Shondel J. as, there, the biological mother had wanted to keep the non-biological second parent in the picture.

The petitioner was not left without hope, however, because although Alison D. was a nearly identical case to the present one, it was different in one crucial respect: The parties in Alison D. were not legally joined in marriage or state-sanctioned civil union. It is this distinction that preserved Debra H.'s chance to prove that she has standing to seek court-ordered continuation of some type of relationship with Janice R.'s biological son.

The court, taking into account the former couple's Vermont civil union, said there were two issues to decide: “whether Debra H. is
[the boy's] parent under Vermont law and, in the event that she is, whether as a matter of comity she is his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing.”

Vermont's Civil Union Statute

Vermont's civil union statute confers on parties to a civil union “all the same benefits, protections and responsibilities under law ' as are granted to spouses in a marriage” (Vt Stat Ann tit 15, ' 1204 (a)). Vermont law also says that those who enter into civil unions there share the same rights “with respect to a child of whom either becomes the natural parent during the term of the civil union,” as “those of a married couple” (Vt Stat Ann tit 15, ' 1204 (f)). And Vermont's Supreme Court relied on these provisions when it held in Miller-Jenkins v. Miller-Jenkins , 180 Vt. 441 (2006), cert denied 550 U.S. 918 (2007), that a child born by artificial insemination to one partner of a civil union should be deemed the other partner's child under Vermont law for purposes of determining custodial rights following the civil union's dissolution. In that case, the court decided children born during a civil union should be treated in the same way as children born during a marriage who are conceived as a result of artificial insemination; in the eyes of the law, they should be considered the natural children of both partners, even absent a biological connection. And the timing of the artificial insemination does not matter, so long as the parties are married, or joined in civil union, at the time of birth. Id.

New York Courts

Having decided in the affirmative the question of whether Vermont would treat Debra H. as the child's parent, the final question then became whether New York courts should accord comity to Vermont and recognize Debra H. as the child's parent under New York law.

The court noted that New York's determination of whether effect is to be given foreign legislation is made “by comparing it to our own public policy; and our policy prevails in case of conflict.” E hrlich-Bober & Co. v. University of Houston , 49 NY2d 574, 580 (1980). The court locates the public policy of the state in “the law as expressed in statute and judicial decision” and also considers “the prevailing attitudes of the community.” Id. Even in the case of a conflict, however, New York's public policy may yield “in the face of a strong assertion of interest by the other jurisdiction.” Id.

As New York already employs the doctrine of comity to recognize parentage created by an adoption in a foreign nation, the court said, “We see no reason to withhold equivalent recognition where someone is a parent under a sister state's law.” The court went on to state, “Janice R., as was her right as [her son's] biological parent, did not agree to let Debra H. adopt [her son]. But the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State's public policy.”

Therefore, the court accorded comity to Vermont's determination that Debra H. is Janice R.'s biological son's parent. That makes is possible for Debra H. to seek visitation and custody at a best-interest hearing before a New York courts.

Conclusion

Susan L. Sommer, an attorney for Lambda Legal Services in Manhattan, who represented Debra H., was disappointed that the Court of Appeals chose not to overturn Alison D. She said in a statement following the decision, “This is a terrific outcome for our client. 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 of whether the parents have entered into a marriage or civil union.”

Justice Carmen Beauchamp Ciparick, in a concurring opinion, echoed that sentiment, stating, “In Alison D., the dissent predicted that the impact of the decision would be felt 'far beyond th[e] particular controversy' of that case, by a 'wide spectrum of relationships,' including 'heterosexual stepparents,' 'common-law' and 'nonheterosexual partners' ' , and even 'participants in scientific reproduction procedures'” (77 NY2d at 657-658 (Kaye, J., dissenting)). That prediction has been borne out. In countless cases across the state, the lower courts, constrained by the harsh rule of Alison D. , have been forced to either permanently sever strongly formed bonds between children and adults with whom they have parental relationships ( see, e.g., Matter of Janis C. v. Christine T. , 294 AD2d 496, 496-497 (2d Dept 2002), lv denied 99 NY2d 504 (2002); Gulbin v. Moss-Gulbin , 45 AD3d 1230, 1231 (3d Dept 2007)) or engage in deft legal maneuvering to explain away the apparent applicability of Alison D. ( see, e.g. , Jean Maby H. v. Joseph H. , 246 AD2d 282, 283, 288-289 (2d Dept 1998); Beth R. v. Donna M. , 19 Misc 3d 724, 734 (Sup Ct, New York County 2008)).

Although an imperfect solution, the Court of Appeals' decision in Debra H. raises some hope for many who have been cut off from children they've raised as their own. Unless and until New York's legislature expands the definition of individuals who may seek visitation and custody, those who want to take on a parental role need to know they have just two options if they want to guarantee their rights: They must either be married or joined in a civil union at the time a child is born to their partner or they must adopt the child after birth. Without these legal safeguards in place, people who consider themselves mothers and fathers are at the mercy of the biological parent if their relationship falls apart.

Janice G. Inman is Editor-in-Chief of this newsletter.