Nancy Polikoff

Will New York finally get it right for children of lesbian couples?

Filed By Nancy Polikoff | September 02, 2009 7:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: biological mother, birth certificates, court cases, custody battles, lesbian mothers, New York

It's almost 20 years since the highest court in New York ruled that a child planned for by a lesbian couple, born to one partner using donor insemination, and raised as the child of two mothers, nonetheless has only one legal parent; and that legal parent has complete autonomy to decide whether the child maintains a relationship with the nonbio mom once the couple splits up. No exceptions.

This isn't Texas. Or Missouri. Or another state known for hostility to same-sex couples raising children. (Texas won't allow the names of two same-sex adoptive parents to appear on the birth certificate of a child born in Texas but adopted elsewhere; Missouri has more reported opinions denying custody to a gay or lesbian parent in favor of a straight ex-spouse than any other state in the country).

No, this is New York. But the case of Alison D v. Virginia M. was decided by the New York Court of Appeals (the state's highest court) in 1991 and it established an iron-clad rule that a nonbiological parent has no standing to bring an action for custody or visitation rights. So unless the couple went to a lawyer and spent the money and time on a second-parent adoption, the child risks the loss of a parent, including the loss of financial support, if the couple splits up.

Well, that may change.

Yesterday the court agreed to hear the case of Debra H. v. Janice R. The facts are not as undisputed as in most cases; the bio mom's (Janice's) position is that she decided to have the child on her own and that her ex-partner never functioned as the child's parent. Although the child had the nonbio mom's (Debra's) last name as a middle name and both moms were listed as parents on the naming certificate issued by the couple's synagogue (and on other papers), Janice says she made these decisions under pressure from Debra and to avoid conflict. Janice also signed a power of attorney appointing Debra as the child's guardian until his 21st birthday. The couple entered a civil union in Vermont during the pregnancy, and under Vermont law this confers a presumption of parentage on the nonbio partner, but Janice (a lawyer!) again says she was pressured into this and only did it because she knew a New York court would not recognize the relationship.

The trial court came up with a way around Alison D. It ruled that the Debra could try to prove that the Janice should be estopped from denying Debra's parentage. Estoppel is a legal concept that makes it difficult for a party to back away from a course of action that another party has relied upon over a period of time. The court ruled that if the non-bio mom could prove that she functioned as a parent to the child (in loco parentis), then estoppel would come into play and the court would decide custody and visitation based on the child's best interests.

Janice appealed before the judge actually held a hearing to determine the facts. The appeals court reversed, citing Alison D. No blood plus no adoption equals no legal status. No matter what. It is that ruling (all of five paragraphs long!) that the New York Court of Appeals agreed to review yesterday.

Did they take the case to overturn Alison D.? I sure hope so. California had a similarly bad decision on the books dating from 1991, but in the 2005 Elisa B. case the California Supreme Court overruled that decision. I'd like to think that in the almost two decades since Alison D. the reality of lives of children born to lesbian couples has permeated the understanding of the members of the Court. And of course the composition of the court has changed. None of the judges on the current court were on the court when Alison D. was decided.

There's a small clue in the court's ruling yesterday; the court ordered a resumption of the Sunday visitation that the trial court had ordered until there is a final ruling in the case. That means Debra will actually be able to see the 5 1/2 year old child immediately and throughout the time it takes to brief, argue, and decide the case. I'm taking that as a good sign.

Thanks to Art Leonard for alerting me promptly to the court's decision to hear this appeal.

(cross-posted at Beyond Straight and Gay Marriage)


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um, and let's hear some plaudits for Lambda Legal, who brought this case and (if you look at yesterday's order) marshalled six amici in support of the motion for leave to appeal.

It's sad that a couple is divorcing and that's the basis for this, but at least there's the possibility of an outcome that will make life better for thousands of our people. The worst part is that some shady-ass lawyer from New York is trying to use a discriminatory law for her own gain. Shame!