Gay Divorce Okayed in Manhattan

BY ARTHUR S. LEONARD | Following the ruling just weeks ago from a state Appellate Division panel that a same-sex marriage contracted in Canada is recognized in New York, a trial court in Manhattan has taken the next step, ruling that a same-sex couple married in Canada can be divorced here.

On February 25, New York County Supreme Court Justice Laura E. Drager denied a motion to dismiss the pending divorce and custody action in Beth R. v. Donna M., citing as precedent Martinez v. Monroe County, decided by the Appellate Division's 4th Department in Rochester on February 1.

Martinez is, for now, a statewide precedent binding on the trial courts, though pending appeals in the Brooklyn and Albany-based appellate departments may lead to a split that would need to be resolved at the state's highest court. (Monroe County Executive Maggie Brooks, a Republican, has announced she will ask the Court of Appeals to review Martinez.)

Relying on recent Rochester Canadian-marriage recognition win, judge lets case proceed.

The lesbian couple in the Manhattan case, whose full names were not identified by the court, married on Valentine's Day 2004, in Toronto. They had a three-month-old daughter born to Donna through donor insemination at the time and subsequently had another daughter, also born to Donna. Beth is not an adoptive parent of either girl.

The women have jointly raised both children from birth, and are known to their daughters as “mom” and “mommy.” In September 2006, when the first daughter was three and the second six months old, Donna announced that she wanted to end the marriage, though the family continued to live together in her apartment until the following spring.

Last April 17, Donna served a “notice to quit” on Beth to get her out of the apartment and a week later Beth sued for divorce. Donna filed a motion to dismiss the divorce action, arguing that the women are not validly married under New York law. Beth then filed a motion to determine her continuing custodial rights and support obligations for the two children.

Justice Drager's analysis is straightforward, noting that Donna relied on the 2006 Hernandez ruling by the Court of Appeals, New York's highest, which found no constitutional right to marriage for same-sex couples and a subsequent Long Island ruling in the Funderburke case, which denied recognition to a Canadian marriage based on Hernandez.

Drager disagreed, citing the Martinez decision earlier this month.

Expanding on Martinez's reasoning, Drager found that the 2006 Court of Appeals ruling did not address recognition of valid out-of-state marriages and reviewed past New York court precedent on that question and made note of the positions taken by Governor Eliot Spitzer, when attorney general, and his successor in that post, Andrew Cuomo.

She also pointed to decisions several years ago by the state comptroller and the city corporation counsel recognizing valid out-of-state same-sex marriages for purposes of the public employee pension funds. When the state high court wrote that the Legislature could extend marriage rights to gay and lesbian couples, Drager argued, it acknowledged that such a law would not be contrary to New York public policy, a key criteria in recognizing marriages from elsewhere.

The judge refused Donna's motion to dismiss the divorce petition.

Regarding Beth's motion that her parental rights be clarified, Drager noted that despite the 1991 Court of Appeals ruling in Alison D. v. Virginia M., which denied a co-parent's custody claim finding she was a “legal stranger” to the children she helped raise, more recent appellate rulings have strained against that precedent to serve the best interests of children in households including a gay or lesbian co-parent. She ruled that the children's best interests will be evaluated to determine if Beth should be granted custodian rights. “Although Defendant did not allow the adoption of the children,” wrote Drager, “she held out Plaintiff to the world, and most important, to the children, as their parent.”

The marriage itself was significant in Drager's thinking. Since it provided for mutual obligations between the spouses, the judge wrote, “These factors significantly affect the children's welfare… Although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children… It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents.”

Drager took note of the fact that the older child “clearly identifies with parental figures” and so could be harmed if her relationship with Beth were suddenly terminated. It is “conceivable,” the judge wrote, that the younger child would also suffer. Both children would experience potential economic harm due to the loss of Beth's support.

According to a report in the New York Law Journal, the Raoul Felder law firm, which represents Donna M., the defendant, announced that it would appeal Drager's ruling to the Manhattan-based 1st Department Appellate Division. That move opens up the opportunity for each of the state's appellate departments to weigh in before the question is sorted out by the Court of Appeals.

Even before that happens, the statewide precedent set by Martinez could disappear if either the Brooklyn or the Albany appellate department disagrees, but it is worth noting that the Rochester case was decided unanimously by five elected Supreme Court justices in western New York who serve on what is probably the most conservative of the state's four judicial departments.

Susan Sommer, a staff attorney at Lambda Legal, represents Beth R., the plaintiff.