A Warning to Co-Parents

Brooklyn appeals court finds lesbian co-parent who failed to adopt a “legal stranger” to child

Same-sex co-parents who do not protect their relationships with their children through adoption may be out of luck in New York if they want to maintain contact with those children over the objections of their former partners.

At least that’s the message from the latest decision on the issue by the New York Appellate Division for the 2nd Department, based in Brooklyn. The court was ruling on an appeal from a 2005 Suffolk County Family Court ruling on September 19.

Denise Behrens and Beatrice Rimland had been living together as partners for several years when they decided they wanted to adopt a child from China to raise together. Because China does not authorize same-sex partners to adopt children, they decided that Rimland would be the adoptive parent. Behrens claims that their plan was to have a New York joint adoption after their child was settled here.

Rimland and Behrens’ sister went to China in August 2000 to finalize the adoption of Bryce, then eight months old, and bring him back. From then until April 2005, Rimland and Behrens raised Bryce together, sharing parenting duties, but no move was made for the co-parent to adopt. In fact, court records show that Rimland filed a petition in 2004 to adopt Bryce alone. Then in April 2005, Rimland asked Behrens to move out and opposed any further contact between her and Bryce.

Behrens filed a visitation petition in the Suffolk County Family Court, but Judge Barbara Lynaugh granted Rimland’s motion to dismiss the case, finding that under prevailing New York court precedents, Behrens lacked standing to seek visitation with a child to whom she was not legally or biologically related as a parent.

Unanimously approving this result, an appellate panel consisting of Justices Stephen G. Crane, Gloria Goldstein, Reinaldo E. Rivera, and Robert A. Lifson characterized Behrens as a “legal stranger” to Bryce, language that had been used by the New York Court of Appeals in a similar case dating from 1991, Alison D. v. Virginia M.

Lower courts are bound by decisions of the Court of Appeals, so this outcome is not very surprising, but Behrens was evidently hoping that legal developments since 1991 would improve her chances of winning. The old precedent predates the U.S. Supreme Court’s 1996 decision in Romer v. Evans, which indicated that anti-gay discrimination may violate the Equal Protection Clause of the federal Constitution. The New York Court of Appeals had issued some favorable gay rights decisions in the interim, including a ruling authorizing joint adoptions of children by gay couples.

But it was precisely this change in the legal climate that ultimately defeated Behrens’ claim. Since she could have adopted Bryce jointly with Rimland in New York, the court found that her failure to do so was a fatal defect in the case. Furthermore, the court rejected the argument that the result was disadvantaging Bryce because of the sexual orientation of his parents, pointing out that the same result would have occurred regardless of whether the parents were two women or a man and a woman, if they were not married and had not adopted jointly.

The court also rejected Behrens’ attempt to use a theory called “equitable estoppel.” In some states, courts have looked at cases in which the child’s legal parent had fostered the relationship with the co-parent and concluded that the legal parent therefore cannot challenge the ex-partner’s standing to bring a visitation petition on grounds of fairness. The Brooklyn panel also found that evidence of psychological bonding between Bryce and Behrens did not establish “extraordinary circumstances” under which the court might disregard the law’s standing requirement.

The decision serves as a wake-up call for same-sex partners who are raising children together without taking the formal step of adoption for the partner who is not yet a legal parent. More significantly, however, the decision should spur advocates for LGBT rights in New York to push the Legislature to reform the family law statutes so that people who have bonded as psychological parents of children can have standing to seek visitation, not least for the benefit of the children at issue. The current statute on parental standing seems to present an absolute bar for intermediate-level appellate judges, although there have been some reports of Family Court judges who have sought ways to get around it.

Some opponents of such reform argue that it will leave legal parents vulnerable to all sorts of interlopers seeking to interfere with their family relationships, but the experience of other states that have allowed these sorts of visitation claims suggests that there is no merit to this perspective.