New York court fails the children of same-sex couples; don't be fooled by press reports to the contrary

Debra H. is the mother of her six-year-old son, a child she raised with Janice R,. her ex-partner who is the child's biological mother. So ruled the New York Court of Appeals today (and that's the highest court in NY, so their decision is final). For that reason, press reports, at least the early ones, refer to the opinion as expanding the rights of gay parents.

Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.

New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.

The New York court had other options. The relevant statute allowed a "parent" to file an action for custody or visitation. The statute did not define "parent." There is no universal definition of what makes someone a legal parent. That has always been a matter of law, often decided by courts. In fact, it is the job of courts to interpret the words in statutes. The increased use of assisted reproductive technologies, for straight and gay people alike, has challenged courts to find an appropriate definition of "parent" when genetics, gestation, intent, and function are divided up among multiple individuals. The New York court was simply not up to the challenge.

Instead, the majority extolled the value of "bright line" rules. But I have news for those judges: The brightest line rule of all is the rule that a man is the father of the children born to his wife and no other children. That was, in fact, the rule for centuries. In 1972, the US Supreme Court said it was an unconstitutional rule, and specifically said that there are "higher values than speed and efficiency." In California, a man or a woman who receives a child into his/her home and holds the child out as his/her own is presumptively a parent. In Kentucky, a child has a second mom if "the legal parent has voluntarily chosen to create a family unit and to cede to [that person] a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child." In Oregon, a woman who consents to her partner's insemination with the intent to be a parent of the resulting child is a parent of that child. Those are all court rulings reflecting the reality of the lives of the children involved, not some fictional "bright-line" rule.

New York does not have marriage, civil union, or statewide domestic partnership for same-sex couples. Responding to the decision today, Empire State Pride Agenda included the following in their press release: "This case demonstrates why New York State needs to pass marriage equality legislation." No it does not. Nothing should be proposed that would further divide children of married same-sex couples from children of unmarried same-sex couples.

This case demonstrates that the legislature needs to pass a law along the lines of the DC or New Mexico parentage acts or the Delaware de facto parent statute. DC also has a de facto parent statute that does not create parentage for all purposes but does allow someone in Debra H.'s position to obtain custody or visitation (and pay child support). I hope ESPA lobbies hard for such measures and leaves marriage out of it.

One of the odder aspects of today's ruling is the companion case of H.M. v E.T., concerning the obligation of a nonbio mom to pay child support. The majority ruled that the Family Court does have jurisdiction to hear a child support action, even though the statutes refer to "parents" supporting their children. The court did not actually rule that the nonbio mom in that case was a parent; it simply said the Family Court could consider the matter. It is in Debra H. that the court hints that the doctrine of equitable estoppel, a concept based on not allowing someone to walk away from circumstances that s/he created and others relied upon, can create a support obligation. Yet in Debra H. the court explicitly rejected equitable estoppel as the basis for continuing a child's emotional relationship with a nonbiological parent through custody or visitation. It makes little doctrinal sense, and even less sense to a real, live child.

The New York legislature has to act. If it doesn't, it will have the suffering of countless New York children on its hands.