New York High Court Grants Parental Rights to Ex-Lesbian Partner

New York’s high court, the Court of Appeals, ruled Tuesday to give visitation rights over a child born into a Vermont civil union to the mother’s former lesbian partner. The court based its decision on the fact that Vermont courts have interpreted civil unions to confer legal parenthood on the partners.

At the same time, the Court resisted efforts to overturn a 19-year-old precedent that holds only a biological connection or legal adoption establishes parental rights under New York State law – meaning that in all other cases where recognizing the laws of other states is not an issue, the New York policy for determining parenthood stands.

The decision handed down by all seven judges declared that because Debra H. and Janice R., both residents of New York City, had contracted a Vermont civil union in November 2003, shortly before the birth of Janice’s child, they would be recognized as legal parents in New York. Janice R. conceived her child through donor insemination, but after the birth she refused Debra H.’s repeated requests to adopt the child. The couple separated in 2006, and by 2008 Janice had cut off all contact between her son and Debra.

The high court reversed the judgment of the state Appellate Division against Debra H.’s claims and upheld a state Supreme Court judge’s original ruling. The judge said that under Vermont law “parties to a civil union are given the same benefits, protections and responsibilities … as are granted to those in a marriage,” and referenced the Vermont Supreme Court’s decision in Miller-Jenkins v. Miller-Jenkins, in which joint legal custody was inferred by the establishment of a civil union before the child’s birth.

The high court said they were recognizing Debra H.’s parental claims on the legal doctrine of “comity” – the principle of recognizing the laws of other states as effective. New York also recognizes “second-parent adoption,” the Court said, and argued that recognizing the parental status of Debra H. on the basis of comity would also not conflict with New York’s public policy.

However, the Court voted narrowly 4-3 to uphold and not overturn their previous precedent in the 1991 case, Alison D. v. Virginia M. – a small bright spot for pro-family advocates.

In that case, the Court of Appeals ruled that without legal adoption, a lesbian partner was a “legal stranger” to the biological mother’s child and therefore could not bring a lawsuit seeking custody or visitation.

Judge Susan Read, writing for the majority, defended the public policy established by the Court in 1991, and refused Debra H.’s request to create what she labeled a “complicated and non-objective test for determining so-called functional or de facto parentage,” a process she said would invariably become “contentious, costly, and lengthy.”

“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 stated, “we remain convinced that the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives.”

The judge said it was the responsibility of the state legislature to overrule the court’s earlier decision.

According to the Associated Press, the attorney for Janice R. might be considering an appeal to the U.S. Supreme Court, saying that her client never intended the civil union to effect a legal relationship between her son and then lesbian partner.

Attorney Sheri Eisenpress told the AP her client “feels like she intentionally declined to allow this person to adopt her son, and now she’s being forced to co-parent with somebody she doesn’t want to.”

“Certainly if she knew by entering into a civil union she would be conferring parental rights on Debra H. she wouldn’t have done it.”

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