The New York Court of Appeals, the state’s highest bench, issued opinions on May 4 in two cases involving the break-up of lesbian couples raising children together.
In both, the legal standing of co-parents was recognized, to different degrees, but the rulings were narrow and their ultimate impact uncertain.
Each of the two couples had a child through donor insemination, and in neither case did the non-biological mother adopt the child.
In Debra H. v. Janice R., the court unanimously ruled that because the couple entered into a Vermont civil union shortly before their child was born, both women would be recognized as legal parents in New York for purposes of determining custody and visitation rights.
In H.M. v. E.T., a sharply divided court ruled that the Family Court has jurisdiction to consider H.M.’s lawsuit to compel E.T. to provide financial support for their child, even though, under New York law, her ex-partner would not be considered a parent of the child.
Both cases presented the court with a vehicle to reconsider its notorious 1991 ruling in Alison D. v. Virginia M. In that case, the court ruled that a biological mother’s same-sex partner was a “legal stranger” to the child whom they had been raising together, so the partner could not bring a lawsuit seeking custody or visitation.
Courts in some other states have adopted tests weighing a number of factors in determining whether to treat co-parents as legal parents, but the New York Court of Appeals held in Alison D. that it was bound by the state’s domestic relations law to limit legal standing to biological or adoptive parents.
In the Debra H. case, though the ruling was unanimous, the seven judges issued several opinions reflecting different legal perspectives. Judge Susan Read devoted most of her opinion to explaining why the four-member majority did not overrule Alison D. She argued that it was up to the Legislature whether to overturn the high court’s earlier decision.
The ruling was heavily foreshadowed by the judges’ questioning during oral argument, which came back again and again to the need they perceived for a bright-line rule that could be applied in simple fashion to determine parental status without the need for detailed factual inquiries. Under the bright-line approach, parental rights are easily ascertained based on biological or adoptive ties or, as in the Debra H. case, by relying on the law of another state that governs the co-parent’s legal status.
Read’s opinion rejected any multi-factor approach that requires a court to hear witnesses, listen to testimony, and exercise subjective judgment, which she argued would leave parental status indeterminate until a judicial proceeding is concluded.
“While Debra H. and various amici in this case complain that Alison D. is formulaic, or too rigid, or out of step with the times,” Read wrote, “we remain convinced that the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives.”
The approach advocated by Debra H., the judge wrote, was “a complicated and non-objective test for determining so-called functional or de facto parentage” that would result in court proceedings “likely often to be contentious, costly, and lengthy.” That prospect, she argued, “threatens to trap single biological and adoptive parents and their children in a limbo of doubt.”
Just four years after Alison D., Read noted, the state’s high court ruled that the adoption statute could be construed to allow a co-parent to adopt their partner’s children. For some period of time following birth, the child would have only one legal parent, but a second-parent adoption proceeding could be initiated quickly.
Judges Victoria Graffeo, Eugene Pigott, and Theodore Jones concurred in the majority opinion, with Graffeo writing a separate opinion echoing Read’s arguments.
Having refused to overrule Alison D., the court took up the issue of the couple’s Vermont civil union. Janice R. was eight months pregnant when the women went to Vermont to enter into a civil union, and they have never legally dissolved that union. Under Vermont law, a child born to one member in a civil union is considered the child of both partners.
The New York court used the “comity” doctrine to reach its result. New York’s rule of thumb in extending comity to legal relationships formed in other jurisdictions is to consider whether doing so would violate the state’s public policy.
“New York will accord comity to recognize parentage created by an adoption in a foreign nation,” wrote Read. “We see no reason to withhold equivalent recognition where someone is a parent under a sister state’s law.”
The court acknowledged that Janice had not agreed to let Debra adopt the child, but the availability of that option in this state convinced the court that recognizing Debra’s parental rights under Vermont law was not contrary to New York’s public policy. And the fact of a Vermont civil union “is as determinable as whether there has been a second-parent adoption” –– thus the court’s insistence that there be a bright line was satisfied.
While agreeing with the court’s ruling, Judge Carmen Beauchamp Ciparick wrote separately to argue that the Alison D. should be overturned as “outmoded and unworkable.” That ruling, she said, “has never been good legal precedent… fixing biology over all else as the key to determining parentage and thereby foreclosing any examination of a child’s best interests.”
She quoted liberally from then-Chief Judge Judith Kaye’s dissent in Alison D., which emphasized that multi-factor tests have proven workable. Ciparick’s opinion was joined by the high court’s current chief judge, Jonathan Lippman.
Judge Robert S. Smith wrote a separate opinion, speaking only for himself, joining the majority’s result but on a totally different ground. He argued that Alison D. should be overruled and replaced with a bright-line rule for lesbian couples, based on the common law principle that every child is born with two parents.
Smith argued that when lesbian couples plan for the birth of a child through artificial insemination whom they will raise together in a family, they should both be treated by the law as legal parents of the child. Applying this concept specifically to lesbian couples, he argued that such an approach would sidestep more complicated multi-factor analysis that encourages litigation.
Debra H., now acknowledged as one of their child’s legal parents as a matter of Vermont law recognized by New York, has the opportunity to demonstrate that it is in their child’s best interest that she be awarded custody or at least visitation rights.
The Alison D. precedent, however, under which same-sex co-parents will generally have no legal relationship to their children unless they adopt them, remains intact.
In the other decision, H.M. v. E.T., the tables were turned, with the biological mother, H.M., suing her ex-partner, E.T., for child support. The couple had a relationship from 1989 through 1995, during which time H.M. became pregnant through artificial insemination and gave birth to a child that the couple planned to raise as a sibling to children E.T. had earlier given birth to. E.T.. performed the insemination procedure and cut the new child’s umbilical cord at birth.
Four months later, however, the couple broke up and H.M., a citizen of Canada, took the child to her parents’ home there. In 1997, after a failed reconciliation, she sued for support in Canadian court, but the case was transferred to Rockland County Family Court in New York to establish jurisdiction over E.T.
After conflicting Family Court rulings, the state’s Appellate division ruled that the Rockland court did not have jurisdiction in the case.
Judge Ciparick’s decision for the Court of Appeals focused narrowly on the jurisdiction issue. Confronted by a motion to dismiss a case, courts assume the truth of a plaintiff’s claim and determine whether such a claim would be legally valid. H.M. alleged that E.T. was a parent of their son, and that was enough for Ciparick, who noted that under state law, the Family Court has jurisdiction when one parent seeks to compel another to provide financial support for their child.
Judge Smith, concurring, submitted exactly the same opinion that he had filed in the Debra H. case, arguing that when a lesbian couple has a child through donor insemination, both partners should be considered parents of the resulting child for legal purposes.
Judge Jones dissented, joined by Judges Read and Graffeo, arguing that the Family Court could not have jurisdiction over a support case against “a woman with no biological or other legal connection to the child.” Jones objected to the usual practice of assuming that a plaintiff’s allegations are true, since the high court’s precedents meant that even if true, H.M.’s factual allegations did not make E.T. a legal parent.
The court, then, by a slim 4-3 vote, ruled that the Family Court has jurisdiction, but when the case is returned to Rockland County, H.M. will surely lose unless she can show that E.T. had adopted the child or demonstrate a legal relationship from another jurisdiction, such as a civil union or marriage, that would make both women legal parents. H.M. has made no such claim, so this is a rather odd victory for her.
These two narrowly focused rulings have left the legal terrain for same-sex couples in New York raising children together pretty much where it was before, with one notable exception. Now, the court recognizes the legal standing of a co-parent not only through a second-parent adoption, but also when a couple has entered into a civil union, marriage, or some other arrangement outside New York that confers parental rights on the second, non-biological partner prior to the child’s birth.
Significantly, the high court’s use of the comity doctrine in evaluating the Vermont civil union bodes well for any future case that reaches it in which the validity of same-sex marriage from other jurisdictions under New York law is tested. It should be noted, though, that the Court of Appeals limited its discussion here to comity in the context of parental rights, nothing broader. A more comprehensive application of the principle to civil unions and marriages from out of state remains an open question at New York’s highest court.
In the Debra H. case, Lambda Legal represented the plaintiff, with Susan Sommer arguing at the Court of Appeals. Jennifer Colyer of Fried Frank argued on behalf of the child’s interest, and Sherri L. Eisenpress of Manhattan’s Reiss Eisenpress LLC represented Janice R., the respondent. In the H.M. case, Peter J.W. Sherwin of the Proskauer law firm represented the plaintiff and David H. Tennant of Nixon Peabody represented the respondent. Both cases drew a variety of amicus briefs, reflecting the significance of the underlying issues for the development of LGBT family law in New York.
