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Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.


Arizona Appeals Court Rejects Lesbian Co-Parent’s Bid to Be Recognized as Adoptive Parent Based on Her Spouse’s Adoption When They Were Married

Posted on: January 29th, 2017 by Art Leonard No Comments

The Court of Appeals of Arizona, Division 1, affirmed a ruling by Maricopa County Superior Court Judge Suzanne E. Cohen, holding that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not require Arizona to retroactively deem a woman to be a legal parent of children adopted by her same-sex spouse at a time when Arizona did not recognize their same-sex marriage or allow second-parent adoptions.  Judge Jon W. Thompson wrote the opinion for the unanimous panel in Doty-Perez v. Doty-Perez, 2016 WL 7477722 (Dec. 29, 2016).

Susan and Tonya began living together in October 2010. Tonya adopted a child, who is not the subject of this appeal, two months later.  Susan and Tonya were legally married in Iowa in July 2011, but at all relevant times for this case were residents of Arizona.  After their marriage, they agreed that Tonya would adopt four special needs children from foster care, intending to raise the children together as co-parents.  If Arizona had allowed for same-sex couples jointly to adopt children, they would have done so, but at the time of the adoptions, Arizona did not recognize their Iowa marriage and prohibited same-sex partner adoptions.

Their relationship later eroded. Susan alleges that on April 8, 2014, as their relationship was ending, she asked Tonya for consent to adopt the children through a second-parent or step-parent adoption, but Tonya refused.  Susan moved out of the marital residence on April 12, 2014, and did not file a petition to adopt the children, which would have been futile without Tonya’s consent.  On October 7, 2014, the 9th Circuit, which covers Arizona, struck down same-sex marriage bans in Latta v. Otter, 771 F.3d 456, and on October 17, 2014, in Majors v. Horne, 14 F. Supp.3d 1313 (D. Ariz.), the federal district court struck down Arizona’s ban and enjoined its enforcement.  The state decided not to appeal the district court’s order.  Susan subsequently filed a “Petition for Dissolution of Non-Covenant Marriage Without Minor Children” and requested in loco parentis visitation rights with the children, on April 14, 2015, subsequently amending her petition to “Marriage WITH Children” and requesting joint legal decision making and parenting time.

Just months later, the U.S. Supreme Court decided Obergefell, holding that same-sex couples had a fundamental due process and equal protection right to marry and to have out-of-state marriages recognized, and Susan followed up in July 2015 with a new “Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children.”  Judge Cohen denied Susan’s petition to be declared a legal parent of the four children, finding that although she had proven by a preponderance of the evidence that the parties would have jointly adopted the children had Arizona allowed such adoptions, Susan had failed to file a second-parent adoption request after October 17, 2014, when Arizona came under an obligation to recognize the Iowa marriage and afford Susan the rights that a step-parent would have to seek to adopt her spouse’s children, and that Tonya, the legal parent, had refused to consent to a step-parent adoption by Susan, as she had the right to do.

The appellate panel agreed with Tonya’s argument that there was no support in Arizona case law for the concept of de facto parent, thus disposing of one of Susan’s arguments out of hand. (The Maine Supreme Judicial Court issued a contrary opinion on the de facto parent issue just weeks later in Thorndike v. Lisio, 2017 Me. LEXIS 10, 2017 ME 14, 2017 WL 218165 (Jan. 19, 2017).)

“We find the dispositive issue is whether, as a matter of law, if a married person adopts a child, that person’s spouse is also deemed or presumed to be a legal parent, with all the legal rights and obligations attached to that status, merely because the couple intended to adopt together,” wrote Judge Thompson. “We think not.”

In light of Obergefell, Susan could effectively argue that Arizona’s failure to recognize the women’s Iowa marriage or to allow legally-married same-sex couples to adopt at the time Tonya adopted the children was a violation of the 14th Amendment, and the court conceded that point.  “However,” wrote Thompson, “we do not read Obergefell to support Susan’s paramount contention that the right of same-sex couples to marry and have their marriages recognized under the Fourteenth Amendment of the U. S. Constitution requires that states retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted, if they had been allowed to do so.”

The court held that applying ordinary rules of statutory construction to the Arizona adoption law, Susan was “not entitled to parental status or full legal parental rights under any of the relevant statutory provisions,” because under Arizona’s statute there is no presumption “granting legal parental rights or obligations to a non-adoptive spouse merely because of her marriage to a person who has adopted a child.  To be vested with such rights and to be so beholden,” Thompson continued, “an individual, either separately, or, if married, jointly with another individual, must formally adopt the child.  To be sure, in light of Obergefell, [the statute’s] language that ‘a husband and wife may jointly adopt’ must be interpreted to also mean that ‘a wife and wife’ or ‘husband and husband’ may jointly adopt.  However, the adoption statute’s use of the permissive ‘may’ indicates there is no presumption of parentage for a non-adoptive spouse.  To apply such a presumption would be to ignore an adoptive parent’s spouse’s individual agency to decide whether to directly and deliberately assume the role of a legal parent by taking the steps necessary to establish a legal relationship with the adopted child.”

Thompson pointed out that the statute provides that upon adoption the adopting parent and the child have a legal parent-child relationship, but it does not state that upon adoption the child automatically has such a relationship with the adopting parent’s legal spouse, and that Susan’s attempt to get the court to adopt such a meaning would be contrary to the legislature’s intent in passing the statute. “Additionally,” wrote Thompson, “the clear interpretation of [the statute’s] definition of a legal parent is that, except in the case of biology, the only legal mechanism that may establish legal parenting status and attach the associated rights and obligations is an order of adoption.  Thus, we cannot order legal parent status for Susan, despite the fact that the parties intended to adopt the children together, but did not only because it was legally impermissible at the time, and Tonya later refused to consent to Susan petitioning for adoption of the four children, prior to their divorce and after same-sex adoptions were legal in Arizona.”

Thompson asserted that the court was “without authority to confer legal parent status on Susan when she never actually petitioned the court to acquire that status while she was still married to Tonya.” (Emphasis in original)  “While we empathize with Susan because our holding leaves her without parental rights and obligations for four children she loves, provided and cared for,” concluded Thompson, “the relevant statutes do not support a contrary conclusion.”

Susan is represented by Leslie A.W. Satterlee and Markus W. Risinger of Gregg R. Woodnick PLLC, Phoenix. Tonya is represented by Keith Berkshire and Megan Lankford of Berkshire Law Office PLLC, also in Phoenix.  Susan could seek review from the Arizona Supreme Court.

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

The Bitter-Enders in the World of Marriage Equality

Posted on: November 10th, 2015 by Art Leonard No Comments

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

Virgin Islands Supreme Court Rules in Favor of Second-Parent Adoptions

Posted on: May 23rd, 2015 by Art Leonard No Comments

On May 20 the Supreme Court of the Virgin Islands ruled that the Superior Court erred when it dismissed a second-parent adoption petition on the ground that the Virgin Islands did not recognize the Canadian same-sex marriage of the petitioners and granting the co-parent’s petition would require terminating the parental rights of the birth mother.  In re L.O.F. & N.M., 2015 V.I. Supreme LEXIS 13.  Eschewing a literal reading of the archaic adoption statutes, the court held that the policy of deciding adoption petitions in the best interest of children provides a basis to “waive” the termination of parental rights when a same-sex co-parent (or stepparent, for that matter) petitions to adopt a child.

The biological mother of L.O.F. and N.M. and her same-sex partner were married in Canada in 2007, and have raised their children together in St. Croix, V.I.  The children were conceived through anonymous sperm donations, the donors having necessarily waived any parental rights.  The women filed an adoption and name-change petition in the Superior Court in December 2012, asking the court to grant an adoption in the partner’s favor without affecting the parental rights of the birth mother so that “all parental rights and obligations [are] shared equally.”  The petition described this arrangement as a “second-parent adoption,” a procedure approved in many court decisions in the United States.  However, Superior Court Judge Denise A. Hinds Roach denied the petition, holding that because the petitioners “filed together as spouses” under “a limited ‘spousal’ or ‘stepparent’ provision in the V.I. adoption statutes and the V.I Code limits marriage to different-sex couples, the court could not grant the adoption.  After the superior court denied a motion for reconsideration, the petitioners appealed to the Supreme Court.

Writing for the unanimous court, Justice Maria M. Cabret found that Judge Hinds Roach had misconstrued the V.I. adoption provisions.  Indeed, the court found that a literal interpretation of those provisions would disallow ordinary stepparent adoptions.  This is because the statute authorizes adoptions only by single people or married couples, and apparently requires terminating the parental rights of natural parents upon the adoption of their children.  Reviewing the history of the V.I. statute, first enacted in 1921 and later incorporated without change in the V.I. Code in 1957, Justice Cabret pointed out that divorce and remarriage were not common phenomena in the Virgin Islands in those days so provision for stepparent adoptions was not made.  However, the court went on to say that a literal reading of the statutory language should be rejected if it would produce absurd results or undermine the statutory objective, which is to “consider the best interests of the child when making decisions that concern the child.”

Quoting liberally from U.S. state court decisions and law review articles, the court embraced the logic of allowing second-parent adoptions by same-sex partners regardless whether V.I. recognizes same-sex marriages.  “It is clear that the best interests of the children ‘would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,’” wrote Cabret, quoting from an opinion by former N.Y. Chief Judge Judith Kaye for the New York Court of Appeals.  “Granting an adoption in favor of a stepparent or second parent who already serves as the child’s functional parent, without terminating the rights of the original parent, furthers the child’s best interests because the child will be able to ‘preserve [the] unique filial ties’ to the stepparent or second parent in the event she divorces or separates from the original parent, or the original parent predeceases the stepparent or second parent,” continued Justice Cabret, this time quoting from a ruling by the Massachusetts Supreme Judicial Court.

The court found that applying the V.I. statutory provision requiring termination of the natural parent’s rights upon an adoption would “actively undermine the best interests of children such as L.O.F. and N.M.F., and thus ‘undercut the legislature’s clear intent.’”  This would produce an “absurd outcome,” which is to be avoided in construing statutes.  “Allowing an adopting parent to waive enforcement of this provision and maintain the legal rights of the natural parent when it is in the best interests of the child to do so also follows the widely recognized principle that adoption statutes ‘must be strictly construed to protect the rights of natural parents,’” the court continued, noting that adoption of children was not known at common law and is a creature solely of statute in common law jurisdictions.  “So while we must not interpret the adoption statutes to undermine the legislative purpose of promoting the best interests of the child, we must also remember that ‘adoption is not part of our common law tradition,’ and instead works to abrogate the common law rights of natural parents.”

Since, in this case, both parties clearly consent to an adoption under which the natural parent will continue to be a legal parent of the children, the Superior Court should approve the petition on remand if it finds that the adoption will be in the best interests of the children.

The court pointed out that the logic of its decision applied regardless whether the Virgin Islands would recognize a same-sex marriage contracted in Canada, so there was no need to consider the petitioners’ argument that V.I. was required to recognize their marriage.  “But we note that the United States Supreme Court will likely decide in the near future whether statutes like 16 V.I.C. sec. 313 are constitutional,” the court observed in a footnote, citing to the grant of certiorari in Obergefell v. Hodges.  Any decision by the U.S. Supreme Court on this question will be binding in the Virgin Islands, of course, under its commonwealth status.

NY Judge Rules That State Ban on Gestational Surrogacy is No Impediment for Second Parent Adoption

Posted on: April 8th, 2014 by Art Leonard No Comments

Ruling on a previously-undecided question under New York law, Queens County Family Court Judge Barbara Salinitro has decided that New York’s ban on surrogacy contracts does not present an impediment to her consideration of an adoption petition from the same-sex spouse of a man whose twins were conceived and born through a gestational surrogacy contract with a woman in India. The April 3 ruling in Matter of J.J., 2014 N.Y. Slip Op 24089, notes the failure of New York’s statutory law to keep up with social change.

The fathers in this case are J.H.-W. and M.H.-W, New York residents who are legally married to each other. M.H.-W. entered into a gestational surrogacy contract with Y.M.A.K. in India. M.H.-W. provided sperm, which were used to fertilize an anonymous donor’s egg in vitro, and M.H.-W. gestated the twins, to whom she is not biologically related. On May 12, 2013, upon birth of the twins, Y.M.A.K. immediately turned over the twins to M.H.-W., who came to India together with his husband, J.H.-W., for their birth. “On May 28, 2013, the Proposed Adoptive Children were granted United States Citizenship and were permitted to return to the United States with the Birth Parent and Proposed Adoptive Parent,” wrote Judge Salinitro. “The Proposed Adoptive Children have been living with the Birth Parent and the Proposed Adoptive Parent since placement. The home study provided to the Court reports that the Proposed Adoptive Children are thriving in their care. The Proposed Adoptive Parent seeks the Court’s approval for finalization of his adoption petition.”

New York law has developed in significant ways apart from the controversial statutory ban on surrogacy contracts, which the legislature adopted in the 1980s in response to the notorious Baby M Case. In that case, the New Jersey Supreme Court held unenforceable as a matter of a public policy a contract between a heterosexual married couple and a married woman under which she promised to bear them a child conceived with the husband’s sperm and to surrender the child for adoption upon its birth. The surrogate changed her mind and fled the jurisdiction with the baby, leading to a nationwide media sensation. While the court held that contract unenforceable on public policy grounds, despite the lack of any statutory ban at the time in New Jersey, it concluded that the father should have primary custody of the child and that the surrogate’s status as a parent should also be recognized. Looking at this situation next door, the New York legislature passed a statute making such contracts unenforceable and illegal.

Now Judge Salinitro faced the question whether twins conceived and borne through an unenforceable, illegal contract, could nonetheless be adopted by their biological father’s same-sex spouse. Although New York’s statutory ban has never been altered since it was first adopted, the law has changed in other ways, as the state’s highest court ruled in favor of second-parent adoptions in 1995 and the legislature enacted the Marriage Equality Act in 2011. So, although there is a public policy in New York against surrogacy contracts, there is also a public policy in favor of second-parent adoptions, and, in reality, J.H.-W. is the husband of these children’s father and thus, in effect, their step-father with whom they have been living since their birth. The adoption of children by a step-father with the approval of the biological father is a routine occurrence in family courts.

Judge Salinitro, after pointing out that individuals who make surrogacy contracts “become parties to what New York considers an ‘illegal contract,'” she observed, “Bearing that in mind, it is troublesome that when using a surrogate, a birth parent who provides his or her genetic material is a legal parent to the child, yet their partner may not be able to achieve legal parentage through adoption, even though both planned on raising that child together in a family setting. Worse yet, in cases where neither partner has furnished their genetic material for a baby carried by a surrogate, neither parent could be deemed the legal parent of a child through adoption. Although such scenarios are consistent with statutes dictating that no person may give or accept any type of compensation in exchange for placement of a child for the purpose of adoption, such results are inconsistent with the Legislature’s intent that ‘each adoption should be judged upon the best interests of the child based upon a totality of the circumstances.'”

Ultimately, Judge Salinitro found that the “best interest of the child,” the central doctrine of family law in the United States, should overcome any doubts created by the surrogacy statute. After reviewing a variety of cases on related issues and recent attempts to get surrogacy reform through the New York legislature, the judge concluded that the surrogacy statute should not bar this adoption. “In light of the foregoing,” she wrote, “the Court finds where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding.” She pointed out that there was no conflict concerning the fathers’ “care and custody” of the twins in this case, who will reside with the two men as their fathers in any event. Furthermore, the court was not being asked to enforce the surrogacy contract, since the surrogate had willingly complied with it, and the adoption petition did not depend upon the legality of the surrogacy contract in any way.

“Rather,” she wrote, “the Proposed Adoptive Parent, although not a biological parent, wants desperately to have equivalent legal status as the Birth Parent, which is what the couple had always envisioned as they proceeded on their bumpy road towards starting a family together, and is prepared to assume the rights and responsibilities that accompany legal parentage. In keeping with the Legislature’s intent to encourage loving, happy families for children with parents who wish to accept that role, the best interests of the Proposed Adoptive Children under the totality of the circumstances. . . the Court finds that the surrogacy contract’s legality is of no consequence to the matter.”

This is not the end of the proceeding, but Judge Salinitro felt that she had to determine whether the contract was a bar to adoption in these circumstances before proceeding with the remaining formalities. She also cautiously noted that her decision “should in no way be read to condone any violation of any New York State law,” but the clear tone of her opinion sounds a call to the legislature to get moving on revising the surrogacy statute to accommodate the needs of couples who are unable to have children biologically related to at least one of them without the assistance of a surrogate.

The adoption petition was filed on behalf of J.H.-W. by Clifford Greenberg.

Idaho Supreme Court Says Co-Parent Can Adopt Partner’s Children

Posted on: February 11th, 2014 by Art Leonard No Comments

The five-member Idaho Supreme Court ruled unanimously on February 10 that the state’s adoption law would allow second-parent adoptions, reversing a decision by Ada County Magistrate Judge Cathleen MacGregor-Irby, who had dismissed an adoption petition on the ground that the petitioner’s California marriage to the children’s legal mother was not recognized in Idaho. The opinion for the court in “In re Doe,” 2014 Ida. LEXIS 34, by Justice Jim Jones gave a literal interpretation of the statute’s provision stating that “any adult” who is at least fifteen years older than the person being adopted can petition to adopt somebody. Surprisingly, the court did not address a problem highlighted by Justice Joel D. Horton’s concurring opinion: that the statute gives the court discretion to terminate the parental rights of the parent who is consenting to the adoption of their child by somebody to whom they are not married.

Although the court assigned pseudonyms to all the parties in this case, the parents evidently decided to go public, because a news report about the decision published by the Idaho Statesman identifies Darcy Drake Simpson and Rene Simpson as the couple in question. Rene gave birth to their first son in 1998, and adopted a second boy as an infant in 2001. The women had a non-legal commitment ceremony in Boise in 1997, formed a Vermont Civil Union in 2002, and married in California last year. However, Idaho does not recognize any legal status for them as a couple, and has a state constitutional amendment banning marriages or civil unions for same-sex couples.

After the women’s marriage, Darcy filed a petition to adopt the two boys, for which Rene provided written consent. They submitted a Pre-Placement Home Study performed by a certified professional. The Home Study reported that Darcy has been the boys’ primary caregiver, while Rene’s work has provided the main financial support for the family. The children told the professional that they regarded Darcy as their mother, and the Study support the adoption petition. However, Judge MacGregor-Irby dismissed the petition without even holding a hearing, stating that “the petitioner must be in a lawfully recognized union, i.e. married to the prospective adoptee’s parent, to have legal standing to file a petition to adopt that person’s biological or adopted child.” The judge rejected a motion to amend or reconsider her decision. The motion argued that the decision should not have been made without a hearing, and that the adoption statute of Idaho does not require the petitioner to be married to the children’s legal parent.

The Supreme Court first ruled that Judge MacGregor-Irby violated Darcy’s right to due process of law by dismissing her petition without holding a hearing to consider the jurisdictional question. “Jane Doe was given no opportunity to be heard,” wrote Justice Jones. “Furthermore, she had no notice that her petition could potentially be dismissed because there was no opposition to it. Rather, the magistrate court acted unilaterally in dismissing it.” The court concluded that this action “deprived Jane Doe of due process because she was not given notice and the opportunity to be heard in a meaningful manner.” Even more to the point, the court found that the adoption statute itself provides that an adoption petitioner is entitled to a hearing.

More importantly, the court found that MacGregor-Irby had misconstrued the adoption statute. The court agreed with Darcy’s argument that the statute does not require her to be married to Rene in order to adopt the children. MacGregor-Irby had written that there was not any provision in the statute that allows for such adoptions, and concluded that allowing such adoptions would not be consistent with “legislative intent.” But courts generally do not try to discern legislative intent if a statute is “unambiguous” and can be interpreted by resort to the “plain meaning” of the words used by the legislature. In this case, the court criticized MacGregor-Irby for failing to determine whether the statute was unambiguous in its description of who could petition to adopt a child.

The relevant provision states that “any minor child may be adopted by any adult person residing in and having residence in Idaho, in the cases and subject to the rules prescribed in this chapter.” As far as the court was concerned, “‘any adult person’ is susceptible to only one interpretation — a human being over the age of 18,” and thus is “unambiguous.” Furthermore, the court found that the “cases” and “rules” referred to in that provision had nothing to do with the marital relation, if any, between the petitioner and the children’s legal parent. Although the statute mentions “spouse” and “married” several times, those terms are never used in a way suggesting that the adoption petitioner must be married to the legal parent.

Justice Jones insisted that “this is not a case dealing with same-sex marriage. Rather, it is strictly a case dealing with Idaho’s adoption laws. Those laws, including the issue of who may adopt, are set by the Idaho Legislature. The Legislature has imposed no restrictions that would disqualify Jane Doe from seeking to adopt Jane Doe I’s children, and the Court will not imply any such restrictions based upon Idaho’s marital statutes. We emphasize that Jane Doe’s sexual orientation was wholly irrelevant to our analysis. Likewise, it is immaterial in determining whether Jane Doe satisfies the statutory requirements for adoption.” The court sent the case back to Judge MacGregory-Ibry for a determination whether approving the adoption would be in the best interest of the children.

Justice Horton’s concurring opinion sounded a cautionary note. The statute says that the legal parent or parents of a child must give consent for the child to be adopted, unless their parental rights have previously been terminated, and that parents consenting to an adoption must simultaneously consent to the termination of their parental rights. Upon granting of the adoption, those rights are terminated “unless the decree of adoption provides otherwise.” “Thus,” wrote Justice Horton, “the judge hearing the adoption petition may, but is not required to, terminate the parental rights of the parent or parents consenting to the adoption. The Legislature has not identified the standards, if any, by which judges are to exercise their discretion in determining whether to terminate the parental rights of natural parents when proceeding with adoptions.”

“The takeaway is simply this,” wrote Horton: “Parents wishing for a new spouse or domestic partner to adopt must offer to consent to the termination of their parental rights and hope that the judge doesn’t accept the offer.” Of course, for the judge to accept the offer would be absurd, since the adoption petition would specify that the petitioner does not seek to terminate the parental rights of his or her partner, especially where, as in this case, the couple are actually married — even though an Idaho court is required, as of now, to treat their marriage as invisible and unrecognized.

There is a lawsuit pending in federal court challenging Idaho’s ban on same-sex marriages. Since Idaho is in the 9th federal appellate Circuit, which recently held that sexual orientation discrimination claims are subject to “heightened scrutiny,” chances are good that the federal court will rule in favor of the plaintiffs in that case. But, in the meantime, this ruling by the Idaho Supreme Court suggests that Idaho couples have a mechanism to solidify the legal status of their family through second-parent adoptions even though the marriage ban is still in effect.

The attorneys for the Simpsons include the Boise law firm of Mauk & Burgoyne, Nate Peterson Law PLLC, and Lisa Shultz.

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

Posted on: January 28th, 2014 by Art Leonard No Comments

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.

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

Posted on: January 5th, 2014 by Art Leonard No Comments

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.

ECHR: Unmarried Same-Sex and Different-Sex Couples Entitled to Equal Treatment

Posted on: February 22nd, 2013 by Art Leonard No Comments

A Grand Chamber (17 judges) of the European Court of Human Rights (based in Strasbourg) ruled on February 19 that Austria violated the European Convention for the Protection of Human Rights and Fundamental Freedoms by maintaining a statutory scheme under which “second-parent” adoptions are available for unmarried different-sex couples but not for same-sex couples (who do not have the right to marry in Austria).  By a vote of 10-7, the court found that the applicants in the case, a lesbian couple and the son they are raising, are entitled to a new trial to determine whether the best interests of the child justify overruling the objections of his biological father to the proposed adoption by his mother’s same-sex partner.  X and Others v. Austria, Application No. 19010/07.  Ironically, this case has dragged on so long since the adoption petition was filed in 2005 that the child will probably reach the age of majority before the case is finally resolved.

Under Austrian law, same-sex couples cannot jointly adopt children, but there is no bar to individual gay adults adopting a child.  However, in the case of unmarried adult partners where one wishes to adopt the child of the other, the consent of the child’s other parent may be required, although a court can overrule such objections if it finds that the best interest of the child will be served by doing so, and the adoption may not result in the child having two mothers or two fathers.  The Austrian statutes require that if a child is to have two legal parents, they must be one man and one woman. 

In this case, the birth mother had a child with a man to whom she was not married and was not cohabiting.  She is recognized as sole custodian of the child, who was born in 1995, but the father “has recognised paternity” and has maintained a relationship with the child, seeing him regularly and providing financial support.  Since the child was five years old, he and his mother have been living together with his mother’s same-sex partner.  In 2005, the three of them made an agreement for the partner to adopt the child without terminating the parental status and rights of his mother, but the father, whose parental status would be affected by this adoption, objected to the application they filed with the District Court.  That court found that under the Austrian statutes this adoption could not be approved, because it would result in the child having two mothers.  The court did not have to get to the question whether the father’s objections should be overruled.  Through the Austrian appellate process to the Regional Court and the Constitutional Court, the Austrian courts all rejected the argument that this restriction violates the constitutional rights of the applicants, or their rights under the European Convention, to which Austria is a party.

Before the European Court, the applicants asserted that they were not seeking to have equal rights with different-sex married couples, but rather were seeking to be treated equally with unmarried different-sex couples.  This was a prudent move, since the European Court has found in recent litigation involving Austria that the equality requirements (Article 14) as applied to the right to respect for private life (Article 8) do not require parties to the Convention to allow same-sex couples to marry, although the Court may get there some day as a trend towards allowing same-sex marriage spreads among the countries bound by the Convention.  (The possible addition of Britain and France this year could have an important effect in that regard.)  Thus, court was unanimous in concluding that a comparison to the “second-parent” adoption rights of married couples (what in the U.S. we commonly call step-parent adoption) was not appropriate, because of the special legal status attached to marriage.

However, 10 of the 17 judges agreed that in a comparison between unmarried different-sex couples and unmarried same-sex couples, the government should have the burden of showing that “the protection of the family in the traditional sense and, more specifically, the protection of the child’s interests, require the exclusion of same-sex couples from second-parent adoption, which is open to unmarried heterosexual couples.”   The court found that Austria failed to meet this burden.  “The Government did not adduce any specific argument, any scientific studies or any other item of evidence to show that a family with two parents of the same sex could in no circumstances adequately provide for a child’s needs.  On the contrary, they conceded that, in personal terms, same-sex couples could be as suitable or unsuitable as different-sex couples when it came to adopting children.”

The court found that Austria’s legislative scheme “appears to lack coherence.”  Since 2010 Austria has provided registered partnerships for same-sex couples.  The adoption law allows individual gay people to adopt, but neither the adoption law nor the registered partnership law allows same-sex couples to adopt jointly.  (Indeed, the partnership law expressly forbids such joint adoptions, but since it was enacted to go into effect in 2010, it does not apply to this case, which was filed in 2005.)  An individual gay person who is part of a registered couple may adopt, but is required to secure the consent of his or her same-sex partner! 

“The legislature therefore accepts that a child may grow up in a family based on a same-sex couple,” the court observed, “thus accepting that this is not detrimental to the child.  Nevertheless, Austrian law insists that a child should not have two mothers or two fathers.”   The court found that the evidence casts “considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples.  Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favor of allowing the courts to carry out an examination of each individual case.  This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments.”

The court noted that the “margin of appreciation” for countries to take actions that appear to violate the equality principle in the Convention is narrow in cases of sexual orientation, which has been identified in past decisions as a disfavored ground for discrimination.  The European Court makes its decisions on such matters with reference to European trends.  Interestingly, most of the nations governed by the  Convention do not allow “second-parent” adoptions by unmarried couples, regardless whether they are same-sex or different-sex, but of those ten countries that do allow such adoptions, a slight majority at this point (6 out of 10) do allow second-parent adoptions by same-sex couples. In terms of discerning a trend, however, the court decided that “the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States.”

The court also briefly discussed the 2008 Convention on the Adoption of Children, which does not specifically authorize second-parent adoptions for same-sex couples but indicates that states who are bound by that Convention may allow such adoptions.  “This indicates,” said the court, that the Adoption Convention “does not mean that States are free to treat heterosexual and same-sex couples who live in a stable relationship differently.”  However, since Austria has not ratified that Convention, the court’s discussion of its provisions is not directly relevant to this decision.

“The Court is aware that striking a balance between the protection of the family in the traditional sense and the Convention rights of sexual minorities is in the nature of things a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition.  However, having regard to the considerations set out above, the Court finds that the Government have failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child.  The distinction is therefore incompatible with the Convention.”

The court took pains to note that it was NOT deciding that the Convention requires signatory countries to allow second-parent adoptions.  Because this is an equality holding and the Court has not yet found that same-sex couples have an equal right to marriage, member States may still maintain distinctions between married and unmarried couples, including in the area of adoption.  However, if a member State allows second-parent adoption for unmarried couples, it must treat them without distinction based on sexual orientation or the sex of the members of the couple.  Thus the decision is significant for rejecting Austria’s argument that assuring that a child not have two parents of the same sex is a legitimate basis for discriminating based on sexual orientation, and it clearly rejects the contention that same-sex couples are categorically less suitable to raise children than different-sex couples.

The Court made a small damage award to the applicants (EUR 10,000) for non-economic injuries, and awarded costs in the amount of EUR 28,420.88.  The applicants are represented by Dr. Helmut Graupner, a Vienna attorney who heads the leading gay legal advocacy group in Austria and who has argued frequently before the European Court.  The case attracted several amicus briefs.  Prof. Rob Wintemute of King’s College London filed a brief on behalf of six pro-gay non-governmental organizations, including ILGA-Europe, which were granted intervenor status by the court.  Amnesty International also filed a brief in support of the applicants. 

Opposing the applicants were the right-wing European Centre for Law and Justice, the Attorney General of Northern Ireland, and Alliance Defending Freedom (formerly known as the Alliance Defense Fund), a U.S. right-wing litigation group that routinely opposes gay rights at every available opportunity.  ADF’s amicus brief relied upon the usual discredited studies intended to support the claim that in light of “the inconclusive findings of the scientific research and the wide margin of aprpeciation States enjoy in the area of family law, it was justified in the interest of the child to reserve adoption, including second-parent adoption, to heterosexual couples.”  Research on this topic is only “inconclusive” if one credits such studies, which the court was not inclined to do, having found, as the Austrian government conceded, that same-sex couples could be suitable parents.