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Back to Section One | Back to Arts & Entertainment
posted Friday, May 7, 2010 - Volume 38 Issue 19
N.Y. Court of Appeals expands rights of non-biological parents
Section One
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N.Y. Court of Appeals expands rights of non-biological parents

by Mike Andrew - SGN Staff Writer

The New York Court of Appeals, that state's highest court, handed down two rulings May 4 that substantially expanded the rights of non-biological parents.

In one case, the court ruled that a woman can obtain visitation rights for the child she raised with her former partner because she is a legal parent, even though she is not the child's biological mother.

The women, identified in court documents as Debra H. and Janice R., entered into a civil union in Vermont and later separated.

In their 7-0 decision, the court said Debra H. could ask a court for visitation and custody rights because New York confers parental rights on both partners in a same-sex civil union.

New York does not permit either same-sex marriages or same-sex civil unions, but recognizes those relationships when they are concluded in another jurisdiction.

Some legal observers were dismayed that the court did not go even further and establish the parental rights of non-biological parents who are not in legally recognized relationships.

"In many ways, this is a real breakthrough in New York," said Lambda Legal senior counsel Susan L. Sommer, who argued the case before the Court of Appeals.

"But there's also a lot more work that needs to be done, because the decision stops short of bringing New York into line with the growing trend in other jurisdictions," Sommer added.

In fact, some observers argued that the New York decision establishes two standards for children of same-sex couples - one for those born to couples with a legally recognized relationship, and another for those born to couples without legal recognition.

"It is a narrow victory that will help the children of couples who marry or enter civil unions, but it will not help the children of parents who don't," said Nancy Polikoff, a law professor at American University.

"A distinction between whether one is a parent or is not a parent based on whether a couple is in a civil union or not in a civil union - that should not matter," Polikoff added. "From the child's point of view, he or she has two parents."

That case was considered the more far-reaching of the two.

In the other case, the Court of Appeals found that a woman is entitled to seek child support from her former partner, even when the former partner is not the biological mother of a child the couple raised together before they separated.

The decision in this case was split 4-3.

The Court of Appeals has so far rejected legal challenges to out-of-state same-sex unions.

In November, the court decided in separate cases that New York state and Westchester County had both acted lawfully when they extended benefits to same-sex couples.

In the state case, the court rejected a challenge to a state policy that extended health benefits to same-sex partners of state employees who were married in other states.

In the Westchester County case, the court said the county could recognize same-sex marriages performed in other states.

In February, the U.S. Supreme Court declined to hear a case in which a biological mother was seeking to strip her former partner of parental rights.

A family court in California ruled that the former partner should be considered a full parent, and the Supreme Court's refusal to intervene allowed that decision to stand.

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