Lesbian Parent Denied Adoption Requested as Extra Caution

, New York Law Journal


In her decision, Lopez Torres observed that, pursuant to Domestic Relations Law §110, an adopter "acquires the rights and incurs the responsibilities of a parent."

She also pointed to case law saying adoption is not available "to reaffirm, an already existing parent/child relationship."

Furthermore, A.C. had made a prima facie showing of her parental status by appearing on Sebastian's birth certificate.

Before the Martinez court and the Marriage Equality Act, Lopez-Torres said she would have authorized adoption "without any hesitation."

"However, today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son," she said.

In a footnote, she added that any place that did not recognize New York's marriage laws was "equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate's Court."

If A.C. wanted to make her parental status bulletproof in places "hostile to marriage equality," Lopez Torres said the appropriate approach would be challenging the rights denial in that jurisdiction.

It has been about six months since a U.S. Supreme Court majority in United States v. Windsor, 12-307 struck down a provision of the Defense of Marriage Act defining marriage for federal purposes as between a man and a woman.

Since then, Lopez Torres said "a host of state and federal courts in disparate parts of the nation have struck down, on constitutional grounds, state laws and policies that limit the rights of same-sex couples to civil marriage."

In an interview, DiMauro emphasized his views were not necessarily that of his clients or the gay and lesbian community at large. Still, he said the ruling was a "great advancement for the gay and lesbian community" because it "eliminated the need for any adoption proceedings" when both parents appeared on the birth certificate and were legally married.

What's being said

  • not available

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

  • not available

    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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