Gay and Lesbian Child Custody PitfallsAugust 21, 2014 - Author: Gary Port
While the passage of the Marriage Equality Act in New York legalizing gay and lesbian marriages is an important advance in civil rights there are important issues which still need to be resolved. This post will focus on the issue of children and child custody. When the sexual revolution exploded the law struggled with the rights of parents of children born out of wedlock. We now have a dense body of law which addresses these rights of straight parents. Now, we must work on addressing the rights of gay and lesbian parents. The transgendered parents have other issues which will be addressed in another post.
Prior to the sexual revolution, children born out of wedlock were denied numerous rights and the issue of parental rights was generally not addressed. Domestic Relations Law section 24 and Family Court Act section 417 changed all that. A child born before marriage becomes legitimate upon marriage. Further, Family Court Act Article 6 provides that non-married parents have rights to custody and visitation.
With the Marriage Equality Act, a child born to a married gay or lesbian couple could be considered a child of the marriage. Domestic Relations Law section 73 permits a child born to a married woman by means of artificial insemination with the written consent of the mother and her husband to be deemed the legitimate birth child of the woman and husband. In the decision of Wendy G-M v. Erin G-M a lower court in Monroe County, in a well reasoned decision used this principle to find that the lesbian wife who was the non-biological mother was the legal parent. Note the key here: the child was born through artificial insemination and the parties were married at the time of the birth. The other key note is that this decision is but a single lower court decision in a single county. Other courts and more importantly appellate courts in other departments of the state could disagree. There is a real possibility that another judge in another county could come to the opposite conclusion. Let us not forget that the Republican Party and the Conservative Party recently attacked the Mayor of Seacliff, Bruce Kennedy for performing Same-Sex marriages.
The presumption of legitimacy does not apply where the child was born before marriage of a same sex couple. Again, for a straight couple, this is not an issue, but is it for a gay or lesbian couple. The reason is that the Domestic Relations 24 and FCA section 417 creates a presumption that the father is the biological father. However, this is but a presumption and can be rebutted. In the case of a gay or lesbian couple is it self-evident that only one party is the natural parent.
The problem is further complicated by the doctrine of “Equitable Estoppel”. Under this doctrine if a man raises the child as his own, he will be denied the right to deny paternity. The way this normally works is that the father raises the child and finds out several years later that his wife or girlfriend had cheated on him and now he wants to avoid child support. The courts have found this situation createa a non-biological paternity and the court will then require the man to pay child support. Later this doctrine was expanded to allow the father visitation rights.
Under New York law a person who is neither the adoptive parent or the biological parent does normally not have any rights to custody and visitation, absent “extraordinary circumstances””.
The Court of Appeals has expressly rejected the doctrine of Equitable Estoppel for lesbian couples. See Debra H. v. Janice R. 14 NY3rd 576. It can be assumed that the court would also reject this for male homosexual couples as well. In a particularly unjust twist, the Court of Appeals has allowed the finding of paternity for the payment of child support but not for visitation. The Court cited statutory restrictions on its power to allow visitation. So, the non-biological parent has to pay for the child but cannot see the child.
In the case of Jann P v. Jamie R, New York Law Journal July 25, 2014, Family Court Judge Dane faced this frustrating situation. Judge Dane, an outstanding and compassionate Judge, found that the non-biological mother had no custodial rights. It was clear in his decision that he wanted to find to the contrary, but as he stated the statutes and caselaw were against it. In Jann P, the biological mother had the child prior to the marriage. The parties married and signed a separation agreement which provided visitation. After the divorce the biological mother sought to terminate the visitation. Judge Dane explored the law and regretfully concluded that under the current state of the law, the non-biological mother did not have the right of visitation.
To avoid this problem the gay or lesbian couple should not have the child until after marriage. If there is a child born before marriage then all efforts should be made to adopt the child.
Finally, efforts must be made to push the State Government to address this problem and fix the statutes. In the end, until the statutes are made clear and explicit and above all fair, gay and lesbian parents will continue to suffer in this legal limbo.