In Wesley v. Smith-Lasofsky, No. 105819/10 (N.Y. Supreme Ct., July 18, 2011) (published by the NY Law Journal on July 29: NYLJ 1202508854947), Justice Laura E. Drager reasoned her way through a legal puzzle concerning parental status of a civil union partner in ruling favorably on a motion for summary judgment to dissolve a Vermont civil union.
The parties contracted their Vermont civil union on July 5, 2002, when they were New York residents. In January 2003, James Wesley and Brian Smith-Lasofsky moved together to Texas, living together there until they separated the following summer. At the end of the following year, 2005, Wesley adopted his sister's daughter in Texas. (His sister had health problems that prevented her from caring for the child.) Although Wesley and Smith-Lasofsky were no longer living together, they remained friends and the child knew Smith-Lasofsky, but Wesley was the single adoptive parent. (This was, after all, a Texas adoption, and Texas does not authorize joint adoptions by same-sex couples, even had that been of interest to these then-separated boyfriends.) In June 2006, Smith-Lasofsky moved to California, where he lives now. A few months later, Wesley moved back to New York with his adoptive daughter. Justice Drager's decision does not indicate when the suit was filed by Wesley seeking dissolution of the Vermont civil union, or give any reason why he waited so long to do so.
The ability of a New York court to issue an order dissolving a Vermont civil union involving one or more New York residents has become reasonably well established in recent court rulings. See Dickerson v. Thompson, 73 App.Div.3d 52 (3rd Dep't 2010); Parker v. Waronker, 30 Misc.3d 917 (Sup.Ct. Onondaga Co. 2010).
In any event, Smith-Lasofsky did not oppose the dissolution, and did not seek any parental rights with respect to the child, but the question remained for Justice Drager to dispose of: since the child was adopted at a time when the men's Vermont civil union was still in effect, was there any issue for the court in dissolving the union about a possible legal relationships between the child and Smith-Lasofsky? Wesley argued that in light of all the facts of this case, and especially that he and Smith-Lasofsky had ended their relationship as partners prior to the adoption, the adoption "did not give rise to any parental rights or obligations on the part of the Defendant."
Ultimately, Justice Drager agreed with this contention, after working it through a careful reading of the now-superseded Vermont Civil Union Act (which has sunset as a result of passage of a law permitting same-sex marriages there) and a close analysis of the facts in the case.
Smith-Lasofsky filed an affidavit with the court, consenting to the dissolution and stating that Wesley's adoption of the child "was undertaken by him alone, and I am not claiming any parental rights, custodial rights, visitation orders or the like, in connection with the child." Further, the Adoption Report that accompanied the Texas adoption indicated that Wesley had ended his relationship with Smith-Lasofsky, although the men remained friends and had a "casual relationship." The child, as Wesley's niece, had been to visit their home while they were living together after the move to Texas. Wesley indicated that the child was fond of Smith-Lasofsky but did not regard him as her parent.
Ultimately, Justice Drager concluded, although a child born to a parent in a Vermont civil union would be the legal child of the parent's civil union partner, that would not necessarily be the case of a child individually adopted by a Vermont civil union partner, in light of the wording of the Vermont Civil Union Act, making this case distinguishable from Debra H. v. Janice R., 14 N.Y.3d 576 (2010), in which NY's highest court said that a child born in the former situation would be the child of both civil union partners and recognized as such under NY law. Furthermore, Justice Drager found the Court of Appeals' ruling in Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), in which the court estopped the mother's boyfriend from denying parentage when he had held himself out as the parent and established that role with the child, to be easily distinguishable.
"Under the unique facts of this proceeding," she concluded, "where the Defendant did not form a parental relationship with the Plaintiff's adopted daughter, and the parties to this civil union separated prior to the Plaintiff's adoption of the child, the court finds that Defendant has no parental rights or obligations with regard to the Plaintiff's daughter, notwithstanding the fact that the adoption occurred during the existence of the civil union. This holding is confined to the specific facts of this proceeding."
Justice Drager's last statement is important, because there may be circumstances involving support claims on behalf of a child where one would want to argue that an adoptive parent's civil union partner did have parental status, and thus a support obligation. That would have to be a different case factually, however, involving the formation of a parental relationship, perhaps, or a situation where the adoptive parent's partner "held himself out" as father of the child.
Having resolved the parentage issue, Justice Drager granted the motion and declared that the civil union was dissolved.
I think there has no major issue regarding with parents who have a same sex and about their parenting as long as they are doing it right and they are capable to raise a child.