Homosexual Divorces issue – Rights of the Gay and Lesbian Community

The gay and lesbian community have seen a number of ups and downs this past twelve months on the issue of gay marriage. Gay marriage has become a hot topic, not just in politics but with the courts. While the politicians dance around the gay marriage issue, the judges are quietly and not so quietly issuing decisions about gay marriage.

I’ve been refraining from writing a post on this topic because of fear that it would be out of date before I finished writing it. However, I’ll take a stab and bring the site up to speed on the current state of gay marriages in New York.

First, gay couples still cannot get married in New York. But, you can be a gay couple who is married and living in New York. If the marriage occurred in a state or country (i.e. Canada) which recognizes gay marriages your marriage will be recognized in New York.

In the past twelve months there have been a number of court decision holding that a company or the state cannot withhold spousal health benefits from a gay spouse. The courts have held that since gay marriage is not against public policy (unlike the marriage between siblings) it must be recognized if it was legal in the state in which it occurred. The result is that the courts will treat a gay spouse on equal footing as a straight spouse.

Here’s a thought: In New York law, a child born during the marriage is considered of the marriage. If two women get married, and one has a child by artificial insemination, does that mean that the other woman is the legal parent? I don’t know the answer to that one. But, rest assured some day soon, a judge will be faced with it.

Second, gay married couples who are married should be able to get divorced. In another post, I discussed that Justice Laura Drager found that as the Canadian marriage must be recognized, then it would also be subject to dissolution under the New York Domestic Relations Law.

The point to this trend is that gay couples should understand the laws of divorce before they walk into marriage. Most traditional couples in New York already understand the concept of equitable distribution and maintenance. Gay couples should be aware that if they get married these rules will also apply.

Third, visitation rights of a partner. Under New York law, a non-biological parent, absent adoption, has no rights in a child. But, we are increasingly seeing gay couples where one of the partners has a child. However, both partners act as parents. What happens to the non-parent’s rights to visitation upon break up? The courts are still struggling with this. One family court judge has indicated that she would consider visitation. But, ultimately, this question will have to be resolved by the court of appeals.

Fourth, gay adoptions. This is even more complex, and I will save for another day.

The teaching lesson here, is that if you intend to get married, research the law first. Perhaps consult with a matrimonial attorney. To be really safe, execute an agreement to protect your rights from the current shifts in law. If you think and plan first, you are in a better position to protect yourself.

Same Sex Divorce – Same Sex Marriage? Trends In New York Divorce Law

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.

Same Sex Marriages – Martinez v. Monroe- Trends In New York Divorce Law

An appellate court just issued a decision recognizing as valid a same-sex marriage. (Martinez v. County of Monroe). But, there is a caveat: the marriage took place in Ontario, Canada, and not in New York.

The Court of Appeals of the State of New York stated in Hernandez v. Robles that same-sex marriages performed in New York are invalid. Basically, the court held that under the New York Constitution and statutes, there is no positive right for a same sex couple to get married under New York law. The court did not address whether a same-sex marriage obtained in another state would be valid in New York.

The Appellate Division for the 4th Department, which covers Western New York, issued a decision, published in the Law Journal for February 7, 2008, finding that a same sex marriage performed in Ontario, Canada, must be recognized as a valid marriage in New York.

The court observed that such marriages are legal in Ontario, Canada and there is no law in New York prohibiting the recognition of same-sex marriages. Therefore, the court concluded, “the plaintiff’s marriage to Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary.”

The court, finding that the marriage of legal, stated that the failure of the county of Monroe to recognize the marriage constituted discrimination under the New York Executive law.

The decision joins a growing number of decisions recognizing same-sex marriages when performed in a jurisdiction where they are legal.

One interesting note: the court found that failure by the county of Monroe to accord the Plaintiff with all the marital benefits was discrimination. Therefore, the court recognize a right to enforce recognition of the marriage.

Quite frankly, I don’t know where these cases will finally end up. Either the Court of Appeals is going to weigh in the topic or the legislature. If the Court of Appeals upholds this decision, then absent action by the legislature, same-sex marriages performed in other jurisdictions will be valid in New York.

My advise for any same-sex couple seeking to get married in another jurisdiction, hedge your bets and get some type of partnership agreement signed. In the event either the Court of Appeals or Legislature comes down against same-sex marriages, many separating couples could face significant property issues. It’s best to lock down the rules for dividing up the property before you buy that house. In that case, the name of the person on the deed is the owner and the person not on the deed has no property interests.

New York State Pension Rights for Same Sex Couples

A man I personally admire, New York State Comptroller, Thomas DiNapoli,recently recognized, for pension purposes, a Canadian same-sex marriage. He decided that the marriage was valid even though New York State’s highest court, the Court of Appeals, recently held that same-sex marriages are not permissible under the New York state constitution. Mr. DiNapoli recognized the same-sex union between two state workers who got married in Canada.

Mr.DiNapoli’s decision was taken to court, and Justice Thomas J. McNamara in the case of Godrey v. Hevesi, 5896-06, agreed with him. Judge McNamara noted that New York has long recognized the legality of marriages performed in other states and countries, even if such marriages could not be performed in New York.

While proponents of same-sex marriages may view this decision as a victory, it raises as many questions as it settles. Since the Court of Appeals decided Hernandez v. Robles 7 NY3d 338 (2006), the rule in New York has been that same-sex marriages are not permissible.

Judge McNamara’s decision does not necessarily provide a loophole. The problem lay in difference between laws passed by a sister state and laws passed by a foreign county.

The starting point is the United States Constitution’s Full Faith and Credit Clause. This constitutional provision states that one state must give full faith and credit to a judicial ruling of another state. (There are some exceptions, but it is beyond this scope of this posting to get into them.) Similarly, there is a rule known as “comity”. Under comity, a state judge can enforce a foreign county decision if the requirements of due process are met. Unlike the Full Faith and Credit Clause, a court is not required to recognize a foreign nation’s actions.

Now, that brings us back to Judge McNamara’s decision. Two other judges have refused to recognize same-sex unions performed in Canada. In the cases of Funderburk v. New York State and Martinez v. Monroe Community College,two other trial judges decided contrary to Judge McNamara. The Appellate Divisions have not spoken on this issue. But, ultimately, this issue will have to be decided by the New York Court of Appeals. Frankly, I don’t think anyone knows which way the court will decide on this issue.

Child Visitation With Same-sex parents

A relatively new area showing up in New York family law is the parental rights of same sex couples. The general rule in New York is that only the biological parent has rights as a parent, and that a third party is a mere stranger.

There was a recent decision by Nassau Family Court Judge, Stacey D. Bennett, where a same sex partner was found to have the right to at least be heard by the court on the issue of custody. (The decision was published in the August 10, 2007 edition of the New York Law Journal, on page 29.)

The parties met, fell in love and moved in together. After several months, it was decided that Ms. L. would undergo artificial insemination. The parties agreed that if Ms. L became pregnant, Ms. H would assist in taking care of the child. It was undisputed that Ms. H took Ms. L to all her pre-natal visits and was present during the birth of the child. Ms. H even cut the umbilical cord. She assisted in changing and feeding the baby. Ms. L. testified that Ms. H did what a husband would do for a wife during the pregnancy.

After the birth of the child, Ms. L returned to work and Ms. H stayed at home to care for the child. The situation continued for several months until the relationship ended. Ms. L. then moved into a shelter but left her son with Ms H. It was agreed that Ms. H. would keep the child until Ms. L. found suitable housing. Under that agreement, Ms. H. brought the child to New York City, were Mr. L. was living several times for visits. During a visitation there was an argument over financial support. Ms. L. called the police and claimed that Ms. H. refused to return the child. ACS of New York City removed the child and he was ultimately placed in foster care.

Judge Bennett stated the standard law, that a third person does not have rights superior to the parents. The underlying rationale for this rule is that there is a presumption that it is in the child’s best interests to be raised by at least one parent unless the parents are determined to be unfit. She went on to note that the Court of Appeals has found an exception to this rule when it is in the best interests of the child and extraordinary circumstances exist. In determining whether extraordinary circumstances exist, the court should consider the length of time the child has lived with the non-parent, the quality of the relationship and the length of time the biological parent has allowed such custody to continue without trying to assume the parental role.

Judge Bennett then went on to explain that Ms. L. treated Ms H. as a parent to the child. Therefore, she decided that Ms. H. can at least make the argument for custody.

While the question of whether Ms. H. can get custody remains open, this case is interesting in that the court allowed for that possibility. This decision does not merely have implications for same-sex couples, but also for grandparents seeking to obtain custody of their grandchild. This is still an evolving area of the law. The courts have been cautiously pushing on the notation of what a “parent” is, while the legislature has been silent on the issue. Ultimately, the courts cannot carve out an exception and allow third persons the same rights as biological parents. Rather, that will be for the legislature to decide. In the meantime, we will continue to see these small exceptions created using the extraordinary circumstance rule.