Lesbian Parent Denied Adoption Requested as Extra Caution

, New York Law Journal


Adoption is "neither necessary nor available" under New York law to a lesbian seeking to cement her parental status in jurisdictions that do not recognize same-sex marriage, a judge has ruled.

The decision by Brooklyn Surrogate Margarita Lopez Torres (See Profile) focuses on the uncontested petition that a non-biological mother filed for the adoption of her infant son, even though her name appears on the boy's birth certificate.

The Jan. 6 ruling is a strong endorsement of marriage equality but is nevertheless contrary to the advice that many attorneys have given their gay clients.

Michele Kahn, of Kahn & Goldberg, who was not involved in the underlying proceedings, called the ruling "a harmful decision—even though the principle it stands for is good."

Kahn, chair of the New York State Bar Association's Committee on LGBT People and the Law, credited the ruling for "basically saying same sex couples are the same as everyone else."

But she said that she and other practitioners advise "second parent adoptions" like the one in the petition before Lopez Torres.

"It is certainly distasteful to many of us to have to do the adoption," she said in an interview. "But nonetheless, we live in the real world and travel to states that don't recognize same sex marriage but may recognize a New York order of adoption. It behooves us to protect our families that way and recommend" adoption.

Mariette Geldenhuys of Ithaca, who has practiced in LGBT family law for the past 25 years, noted that adoption "is the one legal remedy for creating and confirming a parent-child relationship that has withstood challenge" in states that do not recognize same-sex marriage and the rights flowing from marriage.

"Attorneys representing LGBT clients are deeply concerned about this decision," said Geldenhuys, who is also a member of the state bar's Committee on LGBT People and the Law.

In Matter of the Adoption of a Child Whose Name is Seb C-M, X 2013—21, Lopez Torres acknowledged that the "uncertainty occasioned by the tectonic shifts occurring in the geography of our culture's definition of 'family.'"

What's being said

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    (**...presumed the legal parent of a child **BORN** to a lawful wife)..

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    Had the Surrogate rule differently, it would imply that birth certificates are not sufficient as evidence of parentage. It seems extreme, but such a ruling could mean that all married fathers (under common law presumed the legal parent of a child for to a wife) would need to petition the court to affirm their parental status through adoption proceedings! The Surrogate was wise to prevent such a ludicrous outcome.

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    Interesting article. Completely unintelligible headline.

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    While in some sense logical, this decision is mistaken, in my view, because at present about 30 states do not recognize same-sex marriages and would not automatically recognize the parental status of the petitioner based solely on their same-sex marriage. However, it is well established that adoption decrees, as judicial records, are owed full faith and credit in other states, although there is some disagreement about how that recognition would be enforced (through state court action vs. federal court action). Granting an adoption on this kind of petition harms nobody and will likely provide important protection for travel through non-recognition jurisdictions.

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