NY court backs lesbian's right to seek visitation

By Michael Virtanen
Associated Press Writer / May 4, 2010

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ALBANY, N.Y.—New York's top court ruled Tuesday that a woman whose lesbian partner gave birth following their civil union in Vermont has parental rights including visitation.

The Court of Appeals was divided 4-3 in upholding its 19-year-old precedent that biological connection or adoption generally establishes those rights under state law.

But all seven judges agreed that the woman has standing to claim visitation rights in New York based on recognition of other states' laws. The decision allows the woman, identified only as Debra H., to seek visitation and shared custody at a court hearing on what would be in the child's best interests.

"The availability of second parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our state's public policy," Judge Susan Read wrote for the majority. New York lawmakers have not legalized same-sex marriage or civil unions.

The woman's partner was artificially inseminated and the couple separated three years later. Her ex-partner began cutting off contact with the child two years after that. Once-weekly visitation has continued while the case went through appeals. Both women live in New York City and had visited Vermont for their civil union ceremony.

The court majority declined to set aside the "bright line rule" requiring adoption or biological parental connections, saying it "promotes certainty in the wake of domestic breakups otherwise fraught with the risk of 'disruptive ... battle(s).'" While many states have laws establishing visitation or custody rights for others, such as primary longtime caregivers, Read wrote that would take legislative action in New York, not revamping legal precedent.

In her majority opinion Tuesday in a related lawsuit, Judge Carmen Beauchamp Ciparick wrote that in "countless" cases, the requirement for adoption or biological connection has constrained lower courts dealing with nontraditional relationships, forcing them to either "permanently sever strongly formed bonds" or engage in "deft legal maneuvering" to explain taking steps to preserve them.

In that case, also involving a lesbian couple, the judges concluded Tuesday that Family Court has authority to determine whether a female ex-partner is a parent and must pay child support. The biological mother who was artificially inseminated filed for support from her ex-partner, saying they planned to conceive and raise a child together, though her partner left four months after the birth.

Ciparick wrote that since Family Court unquestionably has jurisdiction to determine support obligations of a female parent, it also has "the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child's parent." The top court sent the case back to a lower court and took no position on the merits of the child support claim.

Judge Robert Smith, in a concurring opinion, wrote that the positions of the ex-partners who are not biological parents is an increasingly common one and existing legal approaches often leave a child with only one parent. "To put a large and growing number of our state's children in that status seems wrong to me," he said.

Smith proposed a rule for lesbian couples that would generally presume a child conceived through artificial insemination with the knowledge and consent of both adults living together is legally the child of both.

An analysis of census data from 2005 showed 50,854 households in New York of same-sex couples, men or women, with 18,335 children in them, said Susan Sommer, an attorney for Lamba Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

Children are devastated when wrenched away from people who in every practical sense are parents, Sommer said, and the larger solution lies with the state Legislature approving legal recognition for them.

"It's a sadly common occurrence," said Sommer, who represented Debra H. "We get dozens and dozens of calls to our office seeking help in those kinds of cases."

Attorney Sheri Eisenpress said her client, identified in the ruling as Janice R., is considering an appeal to the U.S. Supreme Court and agreed the ruling appears to be narrowly drawn to affect only couples where a child was born following a civil union. Eisenpress said 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."

"There needs to be some clear guidelines ... as to who is a parent and when they've become a parent," Eisenpress said. "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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