Precedent Hurts Suffolk Co-Parent

Lesbian mother rebuffed on visitation of child adopted by ex-partner based on 1991 ruling

Forced to follow a 1991 precedent never overturned, a Suffolk County Family Court judge was “constrained” to dismiss a lawsuit by a woman seeking visitation rights with the child she raised from birth until age five.

The decision in Matter of Denise B. v. Beatrice R., published in the New York Law Journal on September 19, shows the continuing legacy of one of the biggest losses the gay community has suffered in the New York courts, which have yet to acknowledge fully lesbian and gay parenting rights. The judge, obviously dismayed by the state of the law, called for New York’s highest court to reconsider the issue.

Denise and Beatrice, a couple living together, found a child to adopt in China, a nation that does not allow joint adoptions by same-sex partners, so Beatrice alone adopted Bryce and brought her back to the U.S. in 2000. The couple raised Bryce together, but when Beatrice decided to end her relationship with Denise, “she severed all contact” between Denise and Bryce, according to the court opinion by Judge Barbara Lynaugh.

The opinion does not mention whether the Chinese bar on joint adoptions kept the women from employing this approach under New York law, which has otherwise allowed for such adoptions since before Bryce was brought to the U.S.

Under New York’s Domestic Relations Law, only a “parent” can seek visitation with a child, and “parent” has been defined by the courts as a birth parent genetically related to the child or a legal adoptive parent. In 1991, in its unfortunate decision in Alison D. v. Virginia M., the Court of Appeals, the state’s highest, held that a lesbian co-parent was a “legal stranger” and thus could not even bring a visitation claim before the court. Despite a strong dissenting opinion by Judith Kaye, who since became chief judge of the court, the Legislature never acted to address this problem by amending the statute. Lower courts are bound to follow the precedent.

The state’s gay political movement during the ‘90s was primarily focused on passing a nondiscrimination law, and since 2002 has shifted to work on domestic partnership and marriage; it has never really targeted the issue of co-parent standing for serious legislative lobbying efforts. Courts in many other states have found creative ways around the problem, especially where the legislation, as in New York, does not include an express definition of “parent.”

Lynaugh’s opinion noted that Denise “argues that her relationship with the child and a consideration of the child’s best interests should grant her standing as some new category of ‘parent’ that has not yet been recognized by either decisional or statutory authority in the State of New York.”

After acknowledging that “Petitioner’s arguments are forceful, articulate, and persuasive,” Lynaugh concluded there was nothing she could do for Denise.

“Were the Court to be solely concerned (as, perhaps, it should be) with Bryce’s best interests and the maintenance of essential, nurturing relationships in this young child’s life, petitioner would be entitled to a hearing on these issues,” she wrote. “Unfortunately, that is not yet the law of this State.”

The judge concluded, “Given the frequency with which children today are being raised by and bonding with long-term heterosexual stepparents (who are equally affected by the holdings herein) and nonmarital homosexual parents, perhaps the time has come for the Court of Appeals to revisit its ruling in Alison D.”

However, even if Denise pursues an appeal, she must first contend with the Appellate Division in the Second Department, which issued an adverse ruling in a similar case just three years ago. The Court of Appeals declined to hear an appeal of that ruling.

As a practical matter, then, this is a question that needs to be addressed by the Legislature.