New York Surrogate Court Approves Gay Father’s Adoption of Child as Co-Parent with Straight Mother

There’s a subtext to New York County Surrogate Court Judge Rita Mella’s adoption decision, Matter of the Adoption of a Child Whose First Name is G, which is published January 6, 2014, in the New York Law Journal.  The man petitioning to be adoptive parent of G, a little girl born in Ethiopia who was adopted in 2011 by the man’s close friend, is gay, and the child’s adoptive mother is not gay.  Therein lies a story told only incompletely by the court, which never mentions the sexual orientation of the parties.  Matter of G, NYLJ 1202635384850, at *1 (Surr., NY, Decided December 27, 2013).

KAL, the mother, and LEL, the father, as the court identifies the parents, met in 2000 and became great friends, working together over a number of years.  KAL confided in LEL that she wanted to have a child using donor insemination, and LEL volunteered to be the known sperm donor.  They tried to conceive a child in this way, both through insemination and in vitro fertilization, without success, and then decided to pursue the overseas adoption route.  In 2011, KAL adopted a little girl in Ethiopia, where unmarried adult partners cannot jointly adopt.  But LEL went with her to Ethiopia for the adoption proceedings, and ever since has participated equally in parenting the child.  KAL lives in Brooklyn and registered the adoption there.  LEL lives in Manhattan, and petitioned for a “second-parent adoption” in the New York County Court.  The child, identified in the opinion as G, alternates times in the homes of her two parents, who remain warm friends and committed to raising her jointly.  A social worker did the necessary home study and recommended that allowing the adoption was in the best interest of the child.

The issue for the court was whether LEL can adopt, consistent with the requirements of New York’s adoption statute.  The Court of Appeals ruled in 1995 that cohabiting unmarried different-sex couples and cohabiting same-sex couples could adopt.  It was not until 2010 that the legislature adopted an amendment to the statute proposed by State Senator Tom Duane to codify this decision, by adding to the statute that “intimate partners” can adopt a child.  The understanding was that “intimate partners” was a way to add to the adoption statute unmarried partners who are raising a child together.

Looking at the legislative history and purpose of the statute in light of the 1995 court ruling, as well as how the terms “intimate partner” and “intimate relationship” have been dealt with in other statutes and other jurisdictions, Surrogate Mella came to the conclusion that this case would be covered by the statute.  She particularly noted a comment from Governor David Paterson’s statement released when he signed the statute into law, making clear that the intent of the amendment was not to narrow the class of people entitled to adopt, but to expand it, and that the legislature made clear that the “best interest of the child” was to be the overriding factor in considering whether to approve adoptions.

“The legislative history of the 2010 amendment to DRL §110 thus supports the interpretation of the phrase ‘intimate partners’ to include a relationship such as the one we have here: very close, loving friends, who have
an intimate connection, which includes planning for and raising a child together,” wrote Surrogate Mella. “Indeed, the experience of jointly and intentionally parenting a child is itself of the most intimate nature.”

She also found that this interpretation would be consistent with the 1995 ruling, Matter of Jacob, that the amendment was intended to codify in the statute.  “Nothing in Jacob suggests that standing is limited to unmarried persons in a romantic relationship with another unmarried person who is the child’s parent, and there is no rationale for excluding unmarried individuals who are committed to raising a child together with another unmarried person from having standing to adopt under DRL §110,” she wrote.

After reviewing the way these two adults have arranged their lives around the raising of this child, and the recommendation in the social worker’s report, Mella concluded that it would be in the best interest of the child to approve this adoption.   She especially noted how having both adults as legal parents would provide tangible benefits to G, including being covered by LEL’s insurance and entitled to various other benefits and legal protections as the legally-recognized daughter of the man who has acted as her father ever since she was adopted by KAL.

“KAL and LEL are two loving adults who are both functioning as G.’s parents and have a relationship with each other built on a solid, decade-plus friendship,” she wrote, continuing, “Even though LEL and KAL have been raising G., to date, solely KAL has been her legal parent. Granting the present petition serves to recognize that LEL and KAL are together and individually permanently committed to raising G. The court finds that it is clearly in G.’s best interests to have LEL become her legal parent.”

New York attorney Judith Turkel, who represents LEL in this adoption case, provided us with an advance copy of the court’s opinion and filled in some of the details missing from the opinion.

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