N.Y. Surrogate Denies Second-Parent Adoption for Married Lesbian Mom

Claiming that a married lesbian had no need to adopt the child born to her same-sex spouse, Kings County (Brooklyn) Surrogate Court Judge Margarita Lopez Torres refused to entertain her adoption petition in Matter of Seb C-M, NYLJ 1202640083455 (Jan. 6, 2014).

Torres reasoned that under New York’s Marriage Equality Law, same-sex marriages enjoy the same presumptions of parental status that are accorded to different-sex marriages. Thus, a child born to a married woman is presumed to be the legal child of that woman’s spouse, and the names of both spouses are placed on the birth certificate as a matter of course. That being the law in New York, Judge Torres said that an adoption decree to document the petitioner’s parental status was “neither necessary nor available.”

Judge Torres’s decision flies in the face of advice that LGBT lawyers routinely give to women in this situation. Although the couple here, A.C. and M.M., were married in Connecticut in 2011, and their marriage has been legally recognized in New York even before the passage of the Marriage Equality Law under court decisions dating back to 2008, and the birth certificate of their son records both their names as parents, they are living in a country with a patchwork of marriage recognition, in which more than thirty states ban recognition of same-sex marriages, whether by constitutional amendment, statute or both. Several lawsuits are now on file challenging refusals to recognize same-sex marriages, but a definitive ruling on the issue may be years away. In the meantime, it is well established in the law that a judicial adoption decree will be given full faith and credit by the courts of other states, even if those states would not themselves allow same-sex second-parent adoptions, so an uncontested adoption proceeding is generally advised for such couples who want to minimize the risk of complications when traveling or relocating across state lines. If their parental status is challenged, they can produce a court order establishing and recognizing that status, which is likely to be respected.

Judge Torres identified the purpose of an adoption proceeding being “to create a new legal relationship where one did not previously exist,” quoting from a prior decision by New York County Surrogate Kristin Booth Glen in which, ironically, she granted a second-parent adoption petition in 2009. In that case, Surrogate Glen wrote, “Adoption is not utilized for, nor is it available to reaffirm, an already existing parent/child relationship.” But, as Surrogate Torres pointed out in a footnote, Surrogate Glen was dealing with a different case, in which the petitioning second-parent had no pre-existing legal parental relationship with the child that would be recognized under New York law, so adoption was an appropriate remedy in that case to solidify the legal status of the family headed by a same-sex couple who had married in the Netherlands.

Judge Torres said that prior to the New York precedents recognizing out-of-state same-sex marriages and the passage of the Marriage Equality Law, she would have “without any hesitation whatsoever” approved this adoption petition. But, she said, “today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son. Indeed,” she continued, “were this court to entertain the instant petition, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage, thereby raising equal protection concerns.”

This is fine as far as it goes. Surrogate Torres is according the marriage of A.C. and C.M. true equality, as it is entitled to receive under New York law. But as a practical matter, such true equality exists, as it were, in a bubble consisting of the states in which same-sex marriages are recognized, and we live in a mobile society in which movement in and out of that bubble is predictable. Judge Torres notes a recent Ohio federal court decision (now under appeal to the 6th Circuit Court of Appeals) ordering Ohio to recognize an out-of-state same-sex marriage on equal protection grounds, as exemplary of the “tectonic shifts occurring in the geography of our culture’s definition of ‘family,’ particularly with respect to the increasing recognition of the right to marriage equality and adoption by same-sex families, as well as the ethical complexities arising from assisted reproductive technology.”

Perhaps Judge Torres is operating under a misapprehension about how other states are likely to react to a same-sex couple traveling through their borders with a child. While stating that she is “wholly sympathetic to the concerns of families of same-sex couples who may wish or need to relocate” to non-recognition jurisdictions, she predicts that a state that would not recognize their marriage would be “equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate’s Court.” Actually, that does not seem to be the case, as courts in non-marriage recognition states have thus far recognized their constitutional obligations to honor adoption decrees, which is precisely why LGBT lawyers recommend this second-parent adoption route to their married clients.

While Judge Torres’s ruling may be seen as further confirmation of the equal marriage rights hard-won by New Yorkers, it unnecessarily cuts off a procedure that may prove vitally important to LGBT families as they travel about the country — at least until the final triumph of marriage equality ultimately negates the non-recognition problem.

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