Court OKs Gay Dad’s Co-Parent Adoption with Straight Mom

There’s a subtext — not anywhere stated — to an adoption ruling by New York County Surrogate Court Judge Rita Mella decided on December 27 and since published in the New York Law Journal.

The man petitioning to be an adoptive parent of a little girl — identified only as G, born in Ethiopia, and adopted in 2011 by the man’s close friend — is gay and the child’s adoptive mother is not. The key to this story, told only incompletely by the court, which never mentions the sexual orientation of the two parents, is Mella’s conclusion that they are “intimate partners” in an “intimate relationship,” meaning that the man’s petition qualifies under New York’s adoption statute.

Manhattan surrogate judge finds committed friends jointly raising a child qualify as “intimate partners”

KAL, the mother, and LEL, the father, as the court identifies them, met in 2000 and became great friends, working together over a number of years. When KAL confided that she wanted to have a child using donor insemination, LEL volunteered to be the known sperm donor. After attempts at conception, both through insemination and in vitro fertilization, failed, they decided to pursue the overseas adoption route.

Though Ethiopia does not allow unmarried partners to jointly adopt, LEL accompanied KAL for the adoption proceedings and has since participated equally in parenting the child. KAL lives in Brooklyn and registered the adoption there, while LEL lives in Manhattan, where he petitioned for a “second-parent adoption” in the New York County Court.

The child alternates times between the homes of her two parents, who remain warm friends and committed to raising her jointly. A social worker did the necessary home study and recommended that allowing the adoption was in G’s best interest.

The issue before Mella was whether LEL was qualified as an adoptive parent under New York’s adoption statute. In 1995, the Court of Appeals, the state’s highest bench, ruled that cohabiting unmarried couples, different-sex and same-sex, could adopt. The spirit of that ruling was codified in 2010, when the Legislature, at the behest of then-State Senator Tom Duane, an out gay West Side Democrat, adopted an amendment to the adoption statute that spelled out that “intimate partners” qualify as adoptive parents.

Examining the legislative history of New York’s adoption statute, the 1995 high court ruling, and the way in which “intimate partner” and “intimate relationship” are dealt with in state law and in other jurisdictions, Mella came to the conclusion that LEL’s petition is covered. She particularly noted that when Governor David Paterson signed the 2010 amendment statute into law, he stated its intent was not to narrow the class of people entitled to adopt, but to expand it. The Legislature made clear that the “best interest of the child” was to be the overriding factor in considering whether to approve adoptions.

The amendment’s legislative history, Mella wrote, “supports the interpretation of the phrase ‘intimate partners’ to include a relationship such as the one we have here: very close, loving friends, who have an intimate connection, which includes planning for and raising a child together. Indeed, the experience of jointly and intentionally parenting a child is itself of the most intimate nature.”

Looking back to the 1995 Court of Appeals ruling, the surrogate wrote, “Nothing… suggests that standing is limited to unmarried persons in a romantic relationship with another unmarried person who is the child’s parent, and there is no rationale for excluding unmarried individuals who are committed to raising a child together with another unmarried person from having standing to adopt.”

Mella accepted the social worker’s evaluation of the child’s best interest and especially noted how having both adults as legal parents would provide tangible benefits to G, including being covered by LEL’s insurance.

“KAL and LEL are two loving adults who are both functioning as G.’s parents and have a relationship with each other built on a solid, decade-plus friendship,” she wrote.

LEL was represented in his petition by New York attorney Judith Turkel, who provided Gay City News with background on the case.