The New York State Court of Appeals, the state's highest court, affirmed, on May 4, in the case of Debra H. v. Janice R., that a lesbian non-biological mother of a child could "seek visitation and custody rights at a best-interest hearing," over the objections of her ex-partner, the biological mother, with whom she had entered into a civil union in Vermont.
Janice R. and her former partner, Debra H., who was represented in the case by Lambda Legal Director of Constitutional Litigation Susan Sommer, met in 2002, decided to raise a family together in a two-parent household, conceived their son using in vitro fertilization, and were joined in civil union in Vermont in November 2003, a month before their son, M.R., was born. According to Lambda Legal, "Debra was by Janice's side throughout labor and delivery and cut their son's umbilical cord; her last name was included in their son's name on his birth certificate. In the years that followed, Debra gave him the nurture and care of a mother." Debra H. wanted to adopt M.R. in a second-parent adoption, but Janice R., an attorney, advised Debra, "as a lawyer," that there was no need to involve the courts and that Debra would always be the boy's parent.
"After the relationship between Janice R. and Debra H. soured and they separated in the spring of 2006, Janice R. allowed Debra H. to have supervised visits with M.R. each week on Sunday, Wednesday and Friday for specified periods of time, as well as daily contact by telephone," according to the Court of Appeals ruling. "In the spring of 2008, however, Janice R. began scaling back the visits. By early May 2008, she had cut off all communication between Debra H. and M.R. In mid-May 2008, Debra H. brought this proceeding against Janice R. in Supreme Court by order to show cause. She sought joint legal and physical custody of M.R., restoration of access and decision[-]making authority with respect to his upbringing, and appointment of an attorney for the child. After a hearing on May 21, 2008, the judge signed the order to show cause ... and the parties ... entered into a 'so-ordered' stipulation that reinstated the three-day-a-week visitation schedule previously followed."
Janice R. appealed, on the basis that she had "conceived M.R. prior to entering into the civil union with Debra H. in Vermont," but on October 9, 2008, the Supreme Court ruled in that Debra H. could "maintain an established relationship with the child," as "the court's primary concern should be furthering the best interests of the child." After Janice H. appealed and obtained a stay, pending disposition of the appeal, the Appellate Division, on April 9, 2009, "unanimously reversed on the law, vacated the Supreme Court's order, denied the petition, and dismissed the proceeding. The court acknowledged that while the 'record indicate[d[ that [Debra H.] served as a loving and caring parental figure during the first 2-1/2 years of [M.R.'s] life, she never legally adopted him,'" and that, by the precedent of Alison D. v. Virginia M., a 1991 lesbian mother custody case, "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law [section] 70." Debra H. requested a stay of enforcement, in order to continue visitation until appellate proceedings were completed, which was denied on June 25, 2009, but after a further appeal, the Appellate Court ordered, on July 13, continuation of one-day-a-week visitation, and granted, on September 1, permission to appeal.
Under Vermont law, "parties to a civil union are given the same benefits, protections and responsibilities ... as are granted to those in a marriage" and it "includes the assumption that the birth of a child during a couple's legal union is 'extremely persuasive evidence of joint parentage.'" The Appellate Court now decided that, "We see no reason to withhold ... recognition where someone is a parent under a sister state's law ... [T]he availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State's public policy." The ruling continues, "We agree ... and in this case decide only that New York will recognize parentage created by a civil union in Vermont. Our determination that Debra H. is M.R.'s parent allows her to seek visitation and custody at a best-interest hearing. There, she will have to establish facts demonstrating a relationship with M.R. that warrants an award in her favor." The court did not go as far as to overrule its earlier decision, in Alison D. v. Virginia M., that only a person related biology or adoption qualifies as a parent, but it did affirm the right of a parent in an out-of-state legally recognized relationship with a child's biological parent.
"This is a terrific outcome for our client," commented Lambda's Sommer, "But it does not solve the dilemma for many New York children. You should not have to travel out of state to establish your legal relationship with your child. The New York legislature should follow the lead taken by many other states and pass legislation clarifying children's legal relationships with both their intended parents, regardless whether the parents have entered into a marriage of civil union."
Based on the new decision, Debra H. can go to trial court to seek custody and visitation, as well as the right to provide financial support for her six-and-a-half-year-old son. Lambda Legal is considering this a "victory" for Debra H., while recognizing that a harmful legal precedent, in Alison D. v. Virginia M., still stands.