ALBANY- New York State’s highest court ruled on Tuesday that nonbiological parents in legally recognized same-sex unions have the same parental rights and obligations as nonbiological parents in legally recognized opposite-sex unions. The question tackled by the court in Debra H. v. Janice R. was whether a nonbiological mother who entered into a Vermont civil union with her pregnant partner prior to the birth of their child had standing to assert parental rights in New York, including visitation. The Court found that she did.
The case involves New York residents Debra H. and Janice R., who met in 2002, and who decided together to have and raise a child via artificial insemination. In November 2003, one month before Debra gave birth, she and Janice traveled to Vermont to obtain and enter into a civil union. In 2006, the couple split up and Janice left the family home. The couple’s agreed-upon visitation schedule eventually broke down, with Debra eventually cutting off all visitation and communication with the child by Janice. In May 2008, Janice brought the present lawsuit seeking joint legal custody and physical custody of the child.
Janice testified at trial that because of her (incorrect) belief that their “civil union was of no legal consequence in New York and did not confer … any additional rights and responsibilities, combined with [her] desire to put an end to [Debra's] nagging, [she] acquiesced to the civil union”. In the end – and perhaps ironically – the deciding factor in Janice’s case was her legal civil union to Debra at the time Debra gave birth to their child. Also ironic is the fact that Janice continually refused to co-adopt the child, despite Debra’s urging (“nagging”?). Had Janice co-adopted the child, she would have become the child’s legal parent in all respects.
Although the legal reasoning is complex, the simple result of this case is to give effect to the well-established legal principal that a child born to two married persons is presumed to be the legal child of both spouses. The Court observed that such a legal presumption of parentage was created in Janice by Vermont’s civil union statute, which specifically confers on same-sex couples “all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage” (Vt Stat Ann tit 15, § 1204 [a]); and the same rights “with respect to a child of whom either becomes the natural parent during the term of the civil union,” as “those of a married couple” (Vt Stat Ann tit 15, § 1204 [f]).
Basing its decision on Vermont’s civil union statute and recent Vermont case law (Miller v. Jenkins), the New York Court held that Janice was entitled to a legal presumption of parenthood under Vermont law. Under the legal doctrine of comity (enforcement of the judicial decision, statutory interpretation, or policy of a sister state so long as it does not violate the public policy of the enforcing state), the Court on Tuesday held that Janice was entitled to a presumption of legal parenthood under New York law. The Court’s decision directs the parties back to the lower court, where Janice will be permitted to seek visitation and custody of the child.
The case is not as groundbreaking as some have suggested. The New York Times, for example, incorrectly states the Court’s holding as granting nonbiological parents in same-sex relationships the same rights as biological parents. [New York Times]. Instead, the Court is merely establishing parity between the rights of nonbiological parents in legally recognized same-sex unions and the rights of nonbiological parents in opposite-sex unions. Although the Court’s ruling specifically deals with Vermont’s civil union statute, presumably the same recognition of parentage would result from a Massachusetts, Connecticut, Vermont, D.C., California, New Hampshire, or other foreign same-sex marriage.
Also of note, the Court explicitly declined to decide whether principles of comity dictate that New York should give legal effect to the parties’ out-of-state civil union. Instead, the Court’s somewhat narrow opinion holds, “only that New York will recognize parentage created by a civil union in Vermont.”
Some final words of caution:
First, speak to a lawyer before entering into a legally sanctioned same-sex union or marriage to discuss the effect on (i) property ownership and inheritance, (ii) child rearing and parenting, (iii) military status, and (iv) the ability to effectively terminate the relationship if needed.
Second, it is extremely important that same-sex couples who intend to become pregnant or raise a child together take all legal precautions to protect each other and their relationship with their children. In Massachusetts, marriage to a biological parent at the time of birth will create a presumption of parenthood in the nonbiological parent as well. However, this presumption may be subject to attack and may require a court to enforce. A co-parent adoption is the best way to establish and protect both parents, and should be recognized by all other states.
Same-sex couples should also consider premarital agreements, parenting agreements, comprehensive estate planning, donor agreements and surrogacy agreements, and other legal ways to protect their family in the face of often conflicting or hostile state and federal laws.