Why Second Parent Adoptions are Vital: How Same-Sex Couples Can Lose Their Kids
As same-sex couples win more legal rights and recognitions, it is important to remember that there are still many gaps in the law. Occasionally these gaps create legal battles that end with one or both partners losing rights they assumed they had. A New York case — Debra H. v. Janice R., ___ N.Y.S.2d ___, 2009 WL 943772 (N.Y. App. Div. 1 Dept. Apr. 9, 2009) — highlights this fact particularly well.
Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.
However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years.
In the case of heterosexual married couples, a child born during the marriage is considered to be the biological child of both the husband and wife — even if there is evidence showing that the child is not biologically related to the husband. This same presumption does not apply to couples in a domestic partnership or civil union. Married same-sex couples should receive the same benefit of this parental presumption, though there has also not yet been a case on those facts. As a result, there is some legal uncertainty in this area. However, even without the force of this presumption, acting in loco parentis as Debra had done is typically sufficient to receive legal recognition.
The court's decision is based on a 1991 New York case — Matter of Alison D. v. Virginia M., 77 N.Y.2d 651 (N.Y. 1991) — which found that "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights." While most states recognize that certain facts may make this automatic denial of standing unjust, New York still follows this rule. As a result, Debra is unable to receive legal rights including custody and visitation with her child.
The entire situation could have been avoided had Debra entered into a second parent adoption. Adopting your partner's child is an important step for gay and lesbian couples to take regardless of your state's position on marriage or civil unions. This area of law is particularly confusing for couples given that states have different rules about how to treat our relationships. Even more confusing is that within the same state, similarly situated same-sex and opposite-sex couples will be treated differently. One should never assume that their relationship will have the same legal footing as their heterosexual friends'.
Same-sex couples should consult with an attorney to ensure that all of their expected rights will be respected, especially if there is a child involved. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a tremulous time can make an unpleasant situation even worse.
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