Susan Sommer

New York State’s highest court ruled this week that a non-biological mother has the right to seek custody and visitation of the child she and her ex-civil union partner planned for and created together. But the decision falls short of what many LGBT civil rights activists had hoped for because the court indicated it still would not recognize a gay parent’s relationship to their child unless they were the biological parent, in a legally recognized relationship with the child’s biological parent, or had secured a second-parent adoption.

Identified in the opinion only by their first names and last initials, New York residents Debra H. and Janice R. conceived a child together using medical insemination. One month before the child was born, in 2003, the women obtained a civil union license in Vermont.

After the boy’s birth, Debra, the non-biological parent, wanted to do a second-parent adoption to establish a legal relationship with the child. That is permitted under New York law. But Janice R. repeatedly denied her requests to do so. The women separated in 2006, but Debra remained active in raising the boy. Then, in 2008, Janice cut off all contact between Debra and the child, and Debra went to court seeking joint custody.

Two lower courts disagreed: one found for and one against Debra. But on May 4, the New York State Court of Appeals, the state’s highest court, said Debra is a legal parent of the child—but only because she is recognized as such under Vermont law, based on her civil union.

The court noted that New York, like other states, must recognize a legal parental status granted in another state, just as it does parentage created by an adoption in a foreign country.

The ruling enables Debra H. to go back to a lower court and ask it to consider her request for custody and visitation, based on the boy’s best interests.

Legal activists applauded the decision for finding that the civil union created a parental relationship between the non-biological parent and the child that was recognized in New York. But they were disappointed the court said it would not recognize the non-biological parent’s relationship with the child had the women not been able to obtain a civil union or marriage license.

The high court explicitly reaffirmed its 1991 Alison D. v. Virginia M. decision that allows only biological or adoptive parents to seek custody and visitation.

Susan Sommer, Director of Constitutional Litigation at Lambda Legal Defense and Education Fund, who argued Debra’s case, said in an interview that the new ruling “doesn’t go far enough” to recognize non-biological parents.

Sommer noted that de facto parents are recognized in a number of other states, and many amicus briefs filed in the case asked the New York court to adopt similar standards.

Courts in California and Kentucky have ruled that a person is a parent if he or she has acted as one with the consent of the biological parent. The Delaware legislature passed a bill in August 2009 stating much the same.

And an Oregon court ruled in 2009 that someone who has consented to a partner’s insemination is a parent. Washington, D.C. and New Mexico each enacted legislation in the past year to the same end.

Maryland’s highest court ruled in 2008, however, that it would not recognize a de facto parent, and the state legislature in April 2010 failed to pass a bill that would have done so.

Nancy Polikoff, professor of law at American University and an expert on LGBT family law, agreed with Sommer.

“The opinion creates two classes of children of same-sex couples: legitimate and illegitimate children,” said Polikoff. “It erases 40 years of family law doctrine that says children shouldn’t suffer based on the marital status of their parent.”

Polikoff and Sommer also agreed that the next step is up to the state legislature. The Empire State Pride Agenda, in a press release after the ruling, likewise called on the legislature to act. And the ruling itself asserted, “Any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent.”

Legislation has already been introduced, by Assemblywoman Amy Paulin and six colleagues, in January 2009. It seeks to define a de facto parent as someone who has a relationship with a child with the consent of the legal parent, performs parental functions “to a significant degree,” and lives with and forms a bond with the child. The bill was referred to the Judiciary Committee in January 2010.

Paulin said in an interview that she has been working behind the scenes with Pride Agenda, Lambda Legal, and other groups on the bill and had been waiting for the results of the Court of Appeals ruling. They will now be “forging ahead” to get the bill passed.

The New York Court of Appeals also ruled May 4 on a related case, H.M. v E.T. The couple there had also created a child through medical insemination, but the non-biological mother now says she is not the child’s parent and should not be responsible for child support. The court said the Family Court had jurisdiction to determine if the non-biological mother is, in fact, the parent and obligated to support.

Although the New York court was unanimous in recognizing Debra H.’s parentage, two judges wrote separate opinions, concurring with the result but stating that Alison D. should be struck down. Judge Carmen Ciparick called it “outmoded and unworkable,” setting biology above a child’s best interests.

And Judge Robert S. Smith wrote regarding both of the May 4 cases, noting, “Each of these couples made a commitment to bring a child into a two-parent family, and it is unfair to the children to let the commitment go unenforced.”