NOTE: This is an old blog, and the law continues to evolve. As I have said elsewhere, this is a quickly changing area of the law. I have new blogs on this. The big problem for Gay and Lesbian married couples is that the statutes do not always protect you in all child custody issues. Basically, if you have not adopted the child and are not the biological parent you may not have rights of custody and visitation. This is particularly true if you move to a state which is hostile to LGBT marriages. Be cautious and get a second parent adoption.
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. But, be aware that a child born of the marriage is considered a child of the marriage.
There was a 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.
