Lesbian Parent Denied Adoption Requested as Extra Caution

, New York Law Journal


Still, she later said, "Were this court to entertain the instant petition, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage."

A.C. and her wife, M.M. are New York residents, who married in Connecticut in April 2011.

Prior to New York's July 2011 enactment of the Marriage Equality Act, Lopez Torres said the pair's marriage was fully recognized in New York pursuant to Martinez v County of Monroe, 50 A.D. 3d 189.

The 2008 Appellate Division, Fourth Department, ruling held out-of-state same-sex marriages had to be recognized in New York.

M.M. gave birth to the couple's son, Sebastian, last year.

Both M.M. and A.C.'s name appeared on the birth certificate of the boy, who has the surnames of both parents.

Still, A.C. filed the uncontested petition for adoption, looking to protect her rights if confronted, for example, with an emergency medical situation regarding Sebastian while they are outside of New York.

Lopez Torres said the action appeared to have been filed "out of an abundance of caution," looking to buttress A.C.'s existing parental relationship in the event of relocation in jurisdictions that were "less hospitable" to same sex couples' rights.

In proceedings leading up to the decision, the judge told the couple's attorney, Michael DiMauro of Staten Island, that she had previously handled same-sex adoption proceedings where just one spouse's name appeared on the birth certificate.

But according to DiMauro, the judge said this was the first case she encountered where both parents' names already appeared on the birth certificate.

What's being said

  • not available

    (**...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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