In a recent ruling, Debra H. v. Janice R., the New York Court of Appeals – the state's highest court – granted "legal parent" status to a woman whose same-sex partner gave birth to a child during their relationship. The child was conceived via artificial insemination, with sperm from an anonymous donor, and was born about a month after the two women entered into a "civil union" in Vermont. The court's ruling gives Debra H. standing to seek visitation and/or custody of the son whom she and her former partner had co-parented.
While this ruling is ultimately supportive of lesbian co-parenting rights, it is narrowly drawn to recognize such rights only when the couple involved is part of a formal, recognized relationship such as a civil union or same-sex marriage.
In so limiting the protection its ruling afforded, the court rejected an argument for broader recognition of so-called "functional parents" – those who participate in crucial aspects of parenting without the benefit of a formal status vis-á-vis the child's other parent or the child. Instead, the court reaffirmed its unpopular 1991 ruling in Matter of Alison D. v. Virginia M., in which it held that only a child's biological or adoptive parent could seek visitation against the wishes of a fit custodial parent.
In a two-part series of columns, I will examine the ruling in Debra H., the ways in which it has changed the landscape in New York for same-sex co-parents, and the reasons why the reaffirmation of Alison D. means that New York law will fail to meet the needs of many non-traditional families.
In this first column, Part One in the series, I will focus on the facts of the case and the ruling regarding the effects of a civil union, which ultimately dictated the outcome. In Part Two, appearing on this site in two weeks, I will analyze the court's rejection of a broader "de facto parentage" doctrine and its likely consequences.
Debra H. v. Janice R.: The Facts and the Proceedings
In November 2003, Janice R. entered into a civil union with Debra H., a woman with whom she had been involved in an intimate relationship. In December 2003, Janice R. gave birth to a son, M.R.
Although Janice, in the court's language, "repeatedly rebuffed" Debra H.'s requests to adopt M.R., the two women co-parented the boy together from his birth until they separated in 2006. (The nature and extent of Debra's parenting role is one of the many disputed facts in this case – one that will now have to be resolved on remand.)
After the separation, with Janice's consent, Debra had in-person visitation with M.R. three times a week and telephone contact with the boy every day. In 2008, however, Janice began restricting Debra's visitation time, and eventually cut off all contact.
In May 2008, Debra filed a petition seeking joint physical and legal custody of M.R. Pending resolution of Debra's claim, Janice agreed to reinstate the three-day-a-week visitation schedule they had used earlier, as long as a nanny or other third party accompanied M.R. on his visits with Debra.
Debra's petition was premised on two alternative theories. First, she claimed that Janice was equitably "estopped" from denying that Debra was also a parent to M.R. given her consent to Debra's functional role in the child's life. In other words, Debra contended that because Janice had acted as if Debra had a parental right to see M.R. – and Debra had in fact functioned as a parent – Janice was now bound to recognize that right.
Second, Debra claimed that she was entitled to "legal parent" status by virtue of the couple's Vermont civil union, which carries with it all the legal rights and obligations of marriage. Ultimately, the state's highest court rejected the first argument, but accepted the second.
The trial court had agreed only with Debra's first argument, concluding that she had established a prima facie case to invoke equitable estoppel as a means to secure visitation and custody rights. (It found the civil union argument relevant to, but not dispositive of, the question of parental rights.) That court then ordered another hearing to sort out the facts relating to this question: Did Debra in fact function as a parent, such that she possessed the rights that come with that status?
Before that hearing could take place, however, Janice appealed the court's ruling that equitable estoppel could be invoked in this context – and the appellate court agreed with her that the ruling had been in error. In an April 2009 ruling, the Appellate Division unanimously vacated the trial court's order, concluding that Debra could not seek visitation or custody under New York law because, despite serving "as a loving and caring parental figure for the first 2 1/2 years of [M.R.'s] life," she was neither his biological nor adoptive mother.
Debra then appealed this ruling to the state's highest court, which considered both the equitable estoppel claim and the alternative basis for standing – the civil union between Janice and Debra.
Who is a Parent? The Murky and Changing Legal Waters
The basic question at the core of this case is whether Debra is M.R.'s parent. This is not merely a factual question, but a legal one: Does Debra meet any of the law's criteria for "legal parent" status?
A legal parent is someone who, by virtue of a particular tie to a child, is endowed with constitutionally-protected rights, and subject to potentially onerous obligations. As a general matter, a biological mother is a legal parent unless and until her parental rights are terminated. A biological father is a legal parent if he is married to the child's mother at the time of conception or birth, or if some other criterion for fatherhood is met – such as an adjudication or acknowledgment of paternity, or his openly holding out the child as his own. A man can be the "legal father" of a child born to his wife even, in many jurisdictions, if genetic testing disproves his paternity. An adult can also become a legal parent through adoption – a legal process that creates a full parent-child relationship where one did not otherwise exist.
What about a lesbian couple who together plan for the conception and birth of a child? If one partner is the biological mother, she is automatically endowed with "legal parent" status. The other woman's parental status, however, is less certain.
In many states today, a lesbian co-parent can adopt her partner's child – giving the child two legal mothers – as long as there is no legal father in the picture. (An anonymous sperm donor is not a legal father; a child can also cease to have a legal father due to his death or his surrender or termination of parental rights.) Second-parent adoptions were specifically approved by the New York Court of Appeals in 1995, in Matter of Jacob, for an unmarried partner (heterosexual or homosexual) who is raising a child together with the child's biological parent.
For Debra, however, none of these pathways to legal parenthood were open. She was not M.R.'s biological mother, nor did Janice permit her to adopt the child. The question, then, is whether she is entitled to legal parent status either because she was in a civil union with the child's biological mother when he was born, or because a "de facto" parent – roughly, an adult who acts like a parent – is also entitled to parental rights.
The Effects of a Vermont Civil Union in New York
Legal-parent status matters, among other reasons, because parents have a constitutionally protected right to decide whether other adults are allowed to spend time with their children. This right is not absolute, but the U.S. Supreme Court construed it very broadly in Troxel v. Granville, a case I have discussed in prior columns including this one. And even beyond federal constitutional limits, many states have passed family law statutes that impose even greater restrictions on non-parents who seek custody or visitation over the objection of a parent.
In New York, Section 70 of the Domestic Relations Law allows "either parent" to petition for custody or visitation, the determination of which is to be based on the "best interest of the child." (Grandparents or siblings can seek visitation under separate provisions, which narrowly define the circumstances under which such visitation could be granted over the objection of a parent.)
Section 70 does not, however, define "parent" for purposes of this provision. Courts have thus applied the traditional rules, summarized above, for determining parental status. In Alison D., the 1991 ruling I will discuss at further length in Part Two, the court declined to recognize parentage of a nonbiological, nonadoptive "de facto" parent for purposes of applying Section 70.
The court in Debra H. v. Janice R. did, however, recognize Debra's potential parental status by virtue of her civil union partnership with Janice. It did so out of respect for Vermont's laws, which recognize that civil union partners are presumptively the parents of children born during the union to either partner – just as men are presumptively the parents of children born to their wives during a marriage.
This ruling required two steps – first, the court had to make a finding as to what Vermont law says regarding the effects of a civil union on parentage; and, second, the court had to decide that Vermont's law should be given effect in New York.
Vermont's Law on the Effects of a Civil Union on Parentage
Vermont law is relatively clear on the parentage point. Although Vermont now offers full marriage equality to same-sex couples, as I have discussed in a previous column, its legislature broke new ground in 2000 when it adopted civil unions for same-sex couples, a legal status that was identical to marriage in all respects other than name. The enacting statute provided that parties to a civil union shall have "all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage," including the enjoyment of the same rights "with respect to a child of whom either becomes the natural parent during the term of a civil union."
This provision was tested in a 2006 case, Miller-Jenkins v. Miller-Jenkins, which I have written about in previous columns here and here. In that case, a lesbian couple entered into a civil union and then together planned for one of them to become pregnant via artificial insemination. Although one partner was the biological mother, both women were involved in every aspect of the child's conception, birth, and early rearing. Thirteen months after the child's birth, however, the biological mother took the child and fled to Virginia, a state that is notoriously hostile to same-sex couples.
In the course of dissolving the couple's civil union, however, a Vermont court ruled that both women were legal mothers of the child. Biology was the basis for one mother's claim, but the civil union was the basis for the other's claim. Like a husband, a civil union partner is presumed to be the (other) mother of a child born to her partner.
In Debra H., Janice argued that Miller-Jenkins should not apply because, in that case, the child was conceived after the civil union was established, whereas M.R. was born after Debra's and Janice's civil union ceremony but conceived before it. But the New York court ruled that, under Vermont law, this distinction was irrelevant, because the Miller-Jenkins court had emphasized several times that its finding of joint parentage was premised on the fact that the child was born after the couple became legal partners regardless of the timing of conception.
The Ruling on Whether New York Will Give Effect to Vermont Law on Legal Parentage
In sum, Vermont law would likely recognize Debra as M.R.'s legal parent because of the civil union. But that conclusion is not dispositive. A New York court still has the choice whether to give effect to Vermont law, when its own laws are different or in conflict.
Courts generally are forced to recognize adoption orders from other states because legal judgments are subject to the most exacting form of "full faith and credit" – the requirement that each state honor legal acts and judgments from sister states. But the question whether to honor another state's law, as opposed to another state's court's order or judgment, is subject to much less exacting standards. Courts have discretion as to whether to defer to sister states' statutes and legal precedents, or whether to apply the standards dictated by their own state's statutes and their own legal precedents. The decision to defer is an exercise of comity – respect for sister states – not a constitutional obligation.
In this case, the Debra H. court opted to rely on this notion of "comity" to defer to Vermont's parentage rules. It found no evidence in New York law of a public policy that is opposed to the recognition of same-sex co-parents – indeed, it found that the state's law is entirely to the contrary. New York permits one person to adopt the children of a same-sex partner, and permits same-sex couples to jointly adopt children. Nor would an exercise of comity here, the court reasoned, interfere with New York's commitment to bright-line rules governing parental status. Whether or not a couple has entered into a civil union is no more complicated to ascertain than whether a man and woman have married, or whether an adoption order has been issued.
Thus, although Janice argued that she did not view the civil union as having any consequences, and claimed that she had "acquiesced to the civil union" only to "put an end to [Debra H.'s] nagging", the New York court gave the civil union the same legal effect a Vermont court would have granted it. Because Debra could have been considered a legal parent in Vermont, the court held, she is entitled to that same status in New York – a status that now entitles her to seek visitation and custody at a best-interests-of-the-child hearing under section 70. Although the outcome of such a hearing is not foreordained, there is a strong presumption that fit parents should be afforded at least some parenting time with their children.
Although This New York Case Honored a Vermont Civil Union, Another New York Case Disregarded the Same Legal Bond
One irony of the court's ruling on this point is its contrast with the way in which New York has treated Vermont civil unions in other contexts. In a highly-publicized case, Langan v. St. Vincent's Hospital, New York's Appellate Division refused to allow a man to pursue a wrongful death action for the loss of his same-sex partner through alleged medical malpractice. Although the men had entered into a civil union in Vermont, the court ruled there that a civil union partner is not a "spouse" for purposes of New York's wrongful death law, which only allows next-of-kin to sue.
If the court had deferred to Vermont law under principles of comity in that case – which the trial court in the same case had done – then the outcome would clearly have been different. Vermont law grants all the benefits of marriage to civil union partners, and one of those benefits is standing to sue for wrongful death. Yet, the New York court dismissed the request for comity out of hand and gave no attention to New York's long history of recognizing prohibited marriages from out of state. (I discuss this opinion in greater detail in a previous column.)
It may be that the New York court has good reasons for giving effect to a civil union for one purpose, but not another. But the burden is on the court to explain any distinction it draws and thus far, it has not persuasively done so.
The Upshot of the Case – and the Issues I Will Discuss in Part Two
By giving effect to Debra's and Janice's civil union for purposes of determining parentage, the court cleared the way for Debra to seek visitation or custody rights in lower court, and effected some progress on visitation issues for other same-sex co-parents.
For co-parents who have entered into a civil union (currently available only in New Jersey, but possibly soon available in Hawaii, too) or a same-sex marriage (currently available in Massachusetts, New Hampshire, Vermont, Iowa, and Connecticut, as well as in a number of foreign jurisdictions such as Canada and the Netherlands), the ruling in Debra H. will provide greater protection for their parenting rights in the event that the adult relationship dissolves via divorce or death. (It may, in fact, provide too much protection, given how difficult it is to dissolve a civil union. Conceivably, civil union partners could make claims for visitation (or more) with respect to children who are born to a partner long after the actual relationship has broken down, yet while the parents are still technically in the union. I discuss the civil union divorce problem here.)
In Part Two of this series, I discuss the argument that was rejected by the New York court – the argument that co-parents should sometimes receive protection based on their functional parentage, rather than based solely on formal legal ties like biology, adoption, or marriage. The New York Court of Appeals' refusal to overturn Alison D. – its 1991 ruling severely restricting the right of co-parents who are not also adoptive parents to seek visitation over a parent's objection – is likely to have long-lasting and undesirable effects not only on the excluded co-parents, but on the children as well.