Same Sex Divorce – Same Sex Marriage? Trends In New York Divorce Law
by Gary Port /
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March 2, 2008
This posted has been superseded by the new Marriage Equality statute. But, it is left up for the interest of people who want to see the evolution of the law in this area.
The area of Same Sex marriages has become a real hot topic for litigation. Last week’s decision by the Honorable Laura Drager, Supreme Court, New York county has just turned the heat up of notch.
In the care of Beth R . v. Donna M., Justice Drager has extended the decisions from other New York courts regarding same sex marriages obtained in Ontario, Canada. In my some of my prior posts, I have referred to cases where a same sex couple gets married in Canada, and then applied for employment marital benefits in New York. The Fourth Department ruled that the denial of such benefits was discrimination.
Justice Drager has taken that reasoning one step further. If the marriage is valid for benefits, it is valid for application of New York divorce law.
Basically, Beth R. and Donna M. got married in Ontario, Canada. After a few years the marriage fell apart, and the couple parted. Beth R. commenced an action for divorce, and for visitation of the two children born via artificial insemination to Donna M.
Justice Drager found that the couple had a wedding, sent out birth announcements and generally held themselves out to the children and the world as the parents of the children. Therefore, Beth R. did have “parental” rights.
In order to arrive at this decision, Justice Drager had to apply several legal precedents. First, using the same rationale as the Fourth Department in Martinez v. Monroe Community College , she found that the marriage in Canada was afforded recognition. Since the marriage was legal, she reasoned, then the Domestic Relations governing divorces also applied.
It appears that Justice Drager is the first judge to apply the divorce law, including equitable distribution, to same sex marriages contracted outside of New York state.
However, Justice Drager went further and also applied the rules of equitable estoppel. In other posts, I have discussed the issue of equitable estoppel. Basically, if a man raises a child as his own, he cannot later contest paternity, even if he is not the biological father. The rationale is that the child, who believes this man is his father, would be damaged if he suddenly discovered the truth.
Here, Justice Drager applied the same principal of law to same sex marriages. The couple held themselves out as the parents of the children. “The parties taught J.R. to call Plaintiff ‘mom’ and Defendant as ‘mommy’. J.R. calls Plaintiff’s mother ‘nana’ and refers to Plaintiff’s siblings as ‘aunt’ and ‘uncle.'” The parties made joint decisions about pre-school and camp. They jointly made decisions about the pediatrician and the nanny. In all matter the couple acted as parents.
Using the principle of equitable estoppel, Justice Drager found that although, generally, a biological stranger has no interests in a child, in this case, Plaintiff made a showing of entitlement. Further, the court found that an additional factor was the marriage. “Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of [the second child] S.R. may require a finding that she is the legitimate child of both parents.”
The ramifications of this decision are murky. First, Justice Drager is a lower court judge. The Court of Appeals in Hernandez v. Robles 7 NY3rd 338 (2006) has clearly stated that New York cannot create a same sex marriage. Therefore, it is not clear what the appellate division, of the First Department will do here. The Court of Appeals will ultimately have to weigh in. Second, Justice Drager’s decision regarding the visitation is also problematic as it is novel. It is one thing to say that a child should not be confused as to who his father is, it is another to extend that reasoning to a same sex relationship.
Until the Court of Appeals or the legislature weighs in, Justice Drager’s decision merely makes a murky situation more confused. I still advise same sex couples to invest in a partnership agreement as a hedge against the current uncertainties of the law. Basing important life decisions on the confused state of the law could be a disaster.