Ruling Affirms Narrow Reading of 'Parent' in Same-Sex Case

Declining to overrule a 19-year-old precedent, the New York Court of Appeals narrowly held that a same-sex partner who has not adopted her partner's biological child cannot assert visitation rights under New York law.

That conclusion came in Debra H. v. Janice R., an opinion in which the court also cleared the way for a lesbian to seek visitation with a non-adoptive child born to her former partner in a Vermont civil union, but only because the doctrine of comity requires New York to defer to the law of Vermont, which recognizes her as a parent.

The judgment conferring visitation rights on the woman who had a civil union was unanimous. But the court voted 4-3 to affirm Matter of Alison D. v. Virginia M., 77 NY2d 651, a 1991 case that held that only biological or adoptive parents can seek visitation and other rights.

A Similar Case

In a separate case that was also watched carefully by gay and civil rights groups, the court ruled 4-3 that Family Court in New York has jurisdiction to consider whether a woman with no biological or adoptive ties to her former same-sex partner's son should pay child support for the youngster.

The majority concluded in the complex Debra H. ruling that Matter of Jacob, 86 NY2d 651 (1995), which recognized the right of a same-sex partner to adopt her partner's biological child, obviated the need to overturn Alison D.

“In sum, Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of 'disruptive ' battle[s]' ' over parentage as a prelude to further potential combat over custody and visitation,“ Judge Susan Phillips Read wrote for the majority. “While Debra H. and various amici in this case complain that Alison D. is formulaic, or too rigid, or out of step with the times, we remain convinced that the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives.”

Background

The judges had heard oral arguments in the case in March, but delayed decision until their May term because of apparent internal disagreements. There were four separate opinions ' three concurrences and the majority. Court observers could remember few, if any, cases that had provoked so many contrasting views.

Despite the affirmance of Alison D., all the judges concluded that the terms of the civil union entered into by Debra H. and Janice R. had to be enforced in New York. In part, the Vermont civil union requires that “all the same benefits, protections and responsibilities under law“ of marriage be accorded in civil unions, regardless of the partners' gender. New York has no civil union law and does not recognize same-sex marriage.

“New York will accord comity to recognize parentage created by an adoption in a foreign nation,“ Judge Read wrote. “We see no reason to withhold equivalent recognition where someone is a parent under a sister state's law.“

Attorney Comments

Susan L. Sommer, an attorney for Lambda Legal Services in Manhattan who represented Debra H., said that the judges' acceptance of Vermont civil unions could have wider significance than the particular case before it.

“It means that where a couple has entered into a civil union, and I certainly expect the same to be the case for an out-of-state [same-sex] marriage, that they will both be treated as ' parents of a child born of that relationship in New York,“ Ms. Sommer said. Although the court did not accept her views on Alison D., Ms. Sommer said she nevertheless had won a “terrific“ victory. The court returned the case to the state's Supreme Court to decide whether visitation with Debra H. was in the best interests of the boy Janice R. had conceived during their relationship.

Definition of 'Parent'

Judges Eugene F. Pigott Jr., Theodore T. Jones and Victoria A. Graffeo joined with Judge Read in declining to adopt broader principles that would have overturned Alison D. To rule otherwise would change the definition of a “parent“ in state law, something they said was up to lawmakers.

“The Legislature may conduct hearings and solicit comments from interested parties, evaluate the voluminous social science research in this area cited by Debra H. and the amici, weigh the consequences of various proposals, and make the tradeoffs needed to fashion the rules that best serve the population of our State,“ wrote Judge Read, a former Republican counsel in the Legislature. Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick and Robert S. Smith argued that Alison D. should be jettisoned or modified.

Judge Ciparick wrote in a concurring opinion in which she was joined by Judge Lippman that Alison D. should be overruled as “outmoded and unworkable.“

“Alison D. ' has never been good legal precedent,“ Judge Ciparick wrote. “Rather, the majority in that case took an unwarranted hard line stance, fixing biology above all else as the key to determining parentage and thereby foreclosing any examination of a child's best interests.“ Judge Ciparick argued, as did Debra H., that an adult's actions in the role of parent and to the benefit of a child should be considered in determining his or her parental status and the right to visitation if a relationship breaks down. He praised former Chief Judge Judith S. Kaye for showing prescience in the Alison D. case. As lone dissenter, Judge Kaye warned that the court was imposing a “harsh rule“ about what constituted parenthood for visitation purposes that time would outstrip as more and more nontraditional parenting arrangements were established in New York.

“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,“ Judge Ciparick wrote, quoting Judge Kaye's dissent in part. “That prediction has been borne out.“

Judge Ciparick was a close ideological ally of the former chief judge when both were on the Court of Appeals from 1994-2008. They dissented together in the Court's 2006 ruling in Hernandez v. Robles, 7 NY3d 338, in which the Court voted 5-2 against recognizing that the state Constitution gives same-sex couples a right to marry. Judge Smith wrote in a separate concurring opinion that he also would shed Alison D., but contended that the court should establish a new rule that both members of lesbian couples in committed relationships be granted status as parents if one of the partners conceives a child through artificial means when they are together.

“I would apply the common law presumption to the facts of these cases, and would hold that where a child is conceived through ADI [artificial donor insemination] by one member of a same-sex couple living together, with the knowledge and consent of the other, the child is as a matter of law ' at least in the absence of extraordinary circumstances ' the child of both,” Judge Smith wrote.

Possible Appeal?

Sherri L. Eisenpress, attorney for Janice R., said she was examining a possible appeal to the U.S. Supreme Court.

Among other groups filing amici curiae briefs in the Debra H. case were the New York Civil Liberties Union, the American Civil Liberties Union, the New York City Bar, Single Mothers by Choice, Family Watch International, the National Association of Social Workers and New Yorkers for Constitutional Freedoms.

Other Rulings in NY's Family Court

In H.M. v. E.T., 48, the court held 4-3 that Family Court has jurisdiction to consider whether it can order a woman with no biological or adoptive ties to her former same-sex partner's son to pay child support for the youngster.

“Because Family Court unquestionably has the subject matter jurisdiction to ascertain the support obligations of a female parent, Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child's parent,“ Judge Ciparick wrote for the majority. Chief Judge Lippman and Judges Pigott and Smith joined the ruling. Judges Read, Graffeo and Jones were in the minority.

Judge Jones said in a dissent that the Family Court had no authority to address the petition of H.M., which sought support from E.T. for a child with whom he had no biological or legal relationship.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an ALM sister publication of this newsletter. He can be reached at [email protected].

Declining to overrule a 19-year-old precedent, the New York Court of Appeals narrowly held that a same-sex partner who has not adopted her partner's biological child cannot assert visitation rights under New York law.

That conclusion came in Debra H. v. Janice R., an opinion in which the court also cleared the way for a lesbian to seek visitation with a non-adoptive child born to her former partner in a Vermont civil union, but only because the doctrine of comity requires New York to defer to the law of Vermont, which recognizes her as a parent.

The judgment conferring visitation rights on the woman who had a civil union was unanimous. But the court voted 4-3 to affirm Matter of Alison D. v. Virginia M. , 77 NY2d 651, a 1991 case that held that only biological or adoptive parents can seek visitation and other rights.

A Similar Case

In a separate case that was also watched carefully by gay and civil rights groups, the court ruled 4-3 that Family Court in New York has jurisdiction to consider whether a woman with no biological or adoptive ties to her former same-sex partner's son should pay child support for the youngster.

The majority concluded in the complex Debra H. ruling that Matter of Jacob, 86 NY2d 651 (1995), which recognized the right of a same-sex partner to adopt her partner's biological child, obviated the need to overturn Alison D.

“In sum, Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of 'disruptive ' battle[s]' ' over parentage as a prelude to further potential combat over custody and visitation,“ Judge Susan Phillips Read wrote for the majority. “While Debra H. and various amici in this case complain that Alison D. is formulaic, or too rigid, or out of step with the times, we remain convinced that the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives.”

Background

The judges had heard oral arguments in the case in March, but delayed decision until their May term because of apparent internal disagreements. There were four separate opinions ' three concurrences and the majority. Court observers could remember few, if any, cases that had provoked so many contrasting views.

Despite the affirmance of Alison D., all the judges concluded that the terms of the civil union entered into by Debra H. and Janice R. had to be enforced in New York. In part, the Vermont civil union requires that “all the same benefits, protections and responsibilities under law“ of marriage be accorded in civil unions, regardless of the partners' gender. New York has no civil union law and does not recognize same-sex marriage.

“New York will accord comity to recognize parentage created by an adoption in a foreign nation,“ Judge Read wrote. “We see no reason to withhold equivalent recognition where someone is a parent under a sister state's law.“

Attorney Comments

Susan L. Sommer, an attorney for Lambda Legal Services in Manhattan who represented Debra H., said that the judges' acceptance of Vermont civil unions could have wider significance than the particular case before it.

“It means that where a couple has entered into a civil union, and I certainly expect the same to be the case for an out-of-state [same-sex] marriage, that they will both be treated as ' parents of a child born of that relationship in New York,“ Ms. Sommer said. Although the court did not accept her views on Alison D., Ms. Sommer said she nevertheless had won a “terrific“ victory. The court returned the case to the state's Supreme Court to decide whether visitation with Debra H. was in the best interests of the boy Janice R. had conceived during their relationship.

Definition of 'Parent'

Judges Eugene F. Pigott Jr., Theodore T. Jones and Victoria A. Graffeo joined with Judge Read in declining to adopt broader principles that would have overturned Alison D. To rule otherwise would change the definition of a “parent“ in state law, something they said was up to lawmakers.

“The Legislature may conduct hearings and solicit comments from interested parties, evaluate the voluminous social science research in this area cited by Debra H. and the amici, weigh the consequences of various proposals, and make the tradeoffs needed to fashion the rules that best serve the population of our State,“ wrote Judge Read, a former Republican counsel in the Legislature. Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick and Robert S. Smith argued that Alison D. should be jettisoned or modified.

Judge Ciparick wrote in a concurring opinion in which she was joined by Judge Lippman that Alison D. should be overruled as “outmoded and unworkable.“

“Alison D. ' has never been good legal precedent,“ Judge Ciparick wrote. “Rather, the majority in that case took an unwarranted hard line stance, fixing biology above all else as the key to determining parentage and thereby foreclosing any examination of a child's best interests.“ Judge Ciparick argued, as did Debra H., that an adult's actions in the role of parent and to the benefit of a child should be considered in determining his or her parental status and the right to visitation if a relationship breaks down. He praised former Chief Judge Judith S. Kaye for showing prescience in the Alison D. case. As lone dissenter, Judge Kaye warned that the court was imposing a “harsh rule“ about what constituted parenthood for visitation purposes that time would outstrip as more and more nontraditional parenting arrangements were established in New York.

“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,“ Judge Ciparick wrote, quoting Judge Kaye's dissent in part. “That prediction has been borne out.“

Judge Ciparick was a close ideological ally of the former chief judge when both were on the Court of Appeals from 1994-2008. They dissented together in the Court ' s 2006 ruling in Hernandez v. Robles , 7 NY3d 338, in which the Court voted 5-2 against recognizing that the state Constitution gives same-sex couples a right to marry. Judge Smith wrote in a separate concurring opinion that he also would shed Alison D., but contended that the court should establish a new rule that both members of lesbian couples in committed relationships be granted status as parents if one of the partners conceives a child through artificial means when they are together.

“I would apply the common law presumption to the facts of these cases, and would hold that where a child is conceived through ADI [artificial donor insemination] by one member of a same-sex couple living together, with the knowledge and consent of the other, the child is as a matter of law ' at least in the absence of extraordinary circumstances ' the child of both,” Judge Smith wrote.

Possible Appeal?

Sherri L. Eisenpress, attorney for Janice R., said she was examining a possible appeal to the U.S. Supreme Court.

Among other groups filing amici curiae briefs in the Debra H. case were the New York Civil Liberties Union, the American Civil Liberties Union, the New York City Bar, Single Mothers by Choice, Family Watch International, the National Association of Social Workers and New Yorkers for Constitutional Freedoms.

Other Rulings in NY's Family Court

In H.M. v. E.T., 48, the court held 4-3 that Family Court has jurisdiction to consider whether it can order a woman with no biological or adoptive ties to her former same-sex partner's son to pay child support for the youngster.

“Because Family Court unquestionably has the subject matter jurisdiction to ascertain the support obligations of a female parent, Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child's parent,“ Judge Ciparick wrote for the majority. Chief Judge Lippman and Judges Pigott and Smith joined the ruling. Judges Read, Graffeo and Jones were in the minority.

Judge Jones said in a dissent that the Family Court had no authority to address the petition of H.M., which sought support from E.T. for a child with whom he had no biological or legal relationship.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an ALM sister publication of this newsletter. He can be reached at [email protected].