Are You My Mothers: Parental Rights for Same-Sex Partners Under New York Law

Written by Emily Ekland, Albany Government Law Review Member

Introduction

New York law as it applies to same-sex partner rights is ambiguous.  We know that same-sex partners do not have the same rights as married individuals, however, it has yet to be decided whether New York would be willing to recognize civil unions and same-sex marriages from other states in divorce actions.[1] In 2010, the New York Court of Appeals cleared up some questions involving parental rights and responsibilities of same-sex partners who bring a child into their relationship.  Today, a same-sex partner can be chargeable with child support, but does not have parental custody or visitation rights under New York law.  These two holdings may appear contradictory, but the requisite law of New York State validates them.  This is a discussion of the case law presented to the Court of Appeals in 2010 regarding same-sex partner rights.

H.M. v. E.T.

According to the record on appeal, H.M and E.T. were romantically involved for six years, from 1989 to 1995, and were living together for the majority of those years.[2] While both women had discussed having a child early in the relationship, they did not conceive until 1993.[3] Prior to H.M.’s pregnancy, the two discussed child rearing practices, methods of contraception, and whether to raise the child with E.T.’s other children.[4] In 1994, H.M. gave birth and both women accepted responsibility for the care of the child.[5] Shortly thereafter, the relationship ended and the two parties separated.[6] E.T. continued to sporadically provide monetary support for the child, even after a failed attempt to reconcile with H.M.[7]

In 2006, H.M. filed for child support in New York Family Court. However, the Support Magistrate for the Rockland County Family Court, granted E.T.’s motion to dismiss for lack of jurisdiction.[8] Subsequently, the family court reversed the court’s decision and ordered a hearing to determine whether principles of equitable estoppel should hold E.T. liable for support.[9] E.T. appealed and the Appellate Division reversed which led H.M., as of right, to appeal to the Court of Appeals.[10]

In its analysis to determine jurisdiction, the New York Court of Appeals looked at the principles of the Uniform Interstate Family Support Act (“UIFSA”).[11] New York adopted UIFSA in 1997 and selected Family Court as the support proceeding forum.  Under UIFSA, the appointed court determines support claims for dependents that do not accompany matrimonial actions.[12] New York’s Family Court Act’s Support Proceedings chapter further details that parents of a dependant are chargeable with child support.[13] The Court found that the Family Court Act held a parent liable despite the gender of the parents, and, therefore, Family Court has the power to discern whether a female parent must be held liable for child support.[14] Thus, Family Court was the proper court to determine whether E.T. was a parent with support obligations.[15] The determination of whether the claim for child support was valid was remanded to the Appellate Division.

The Appellate Division agreed with H.M. and held that her claim for child support under equitable estoppel was sufficient to hold E.T. liable for support.[16] Equitable estoppel has a history in child support proceedings.  New York has long applied the doctrine of equitable estoppel, “to prevent a putative father, who has established a relationship with a child, from denying paternity in order to avoid paying support.”[17] The requisite issue under this doctrine is whether holding a parent responsible for child support is in the best interest of the child.[18] This principle is sometimes even applied when paternity is not an issue.[19] Additionally, New York Courts  have held a “parent” liable under equitable estoppel, even though the individual may not have a relationship with the child.[20] When this happens, it is called the, “implied promise-equitable estoppel approach,” and it is under this doctrine that E.T. is chargeable for support because both women agreed to raise the child and the child was conceived in reliance of that promise.[21]

Therefore, in child support cases, a same-sex partner who is not biologically related to a child can be a parent under UIFSA if the child was conceived in contemplation of a promise made during the relationship to rear the child.  The implied promise-equitable estoppel approach is beneficial to the gay community because it includes promises to adopt, which leaves this outlet available to same-sex male partners as well.  Therefore, in New York, same-sex partners who bring a child into the relationship are seen as parents under common law for support proceedings.  The doctrine of estoppel, however, does not necessarily cross over into the issue of parentage in child custody cases.

Debra H. v. Janice R.

When Debra H. and Janice R.’s three-year relationship ended, Debra H. filed for custody of the child born during their Vermont civil union.[22] The child was not conceived in contemplation of the relationship; Janice R. was already pregnant when she began a relationship with Debra H.[23] Janice R. also repeatedly rejected Debra H.’s offers to adopt the child.[24] After the separation however, Janice R. permitted her ex-partner to visit the child for two more years, until she was subsequently cut off all communication with Debra H.[25]

In New York, a party may file for custody under the Domestic Relations Law (“DRL”), which states, “either parent may apply,” for custody.[26] The requisite question for the Court of Appeals was whether Debra H. met the definition of a parent under the DRL.  In denying parenthood status to Debra H., the Court of Appeals upheld Allison D., which refused to recognize a de facto parent or a parent by estoppel.[27] The Court reasoned that defining a parent for custody and visitation purposes was already governed by section 110 of the DRL.[28] Section 110 recognizes only two kinds of parents: biological and adopted.[29] The statute goes as far as to express that it does not matter whether the parent is heterosexual or homosexual.[30] This meant the only way Debra H. would be considered a parent in New York for child custody purposes, was if she were biologically related to Janice R.’s child or if she adopted him, and because Janice R. refused to let Debra H. adopt the child, she was not a parent under New York law.

Custody proceedings are also decided using the best interest of the child standard.[31] Therefore, if it can be shown that the biological parent is unfit, then it would be in the best interest of the child to grant parental rights to someone else, but custody rights cannot be given to a non-parent unless it can be shown that the biological parent is unfit.[32] Therefore, without a ruling that Janice R. was unfit, Debra H. would have no visitation or custody rights.

The Court recognized that other proceedings relating to best interest claims, such as child support, used estoppel theory to find parental responsibility.[33] The judges explained, however, that it could not be used in this context because the New York Legislature had made a distinction for the area of law regarding parental rights.[34]

Another reason the Court of Appeals upheld Allison D., was to continue giving children and their biological parents, “predictability of parental identity.”[35] This holding maintains a bright-line rule for when a non-biological figure’s parental rights kick in, and offers stability in the judicial setting regarding custody claims.  The Court noted in its decsion that it must be up to the New York State Legislature to change or expand the law, not the courts.[36]

Despite this decision, this was not the end all, be all for Debra H.  After refusing to call her a parent under New York law, the Court of Appeals used the doctrine of comity to validate the Vermont civil union as it applied to a parentage claim in New York.[37] The doctrine of comity is, “an expression of one State’s [decision] to defer to the policy of another.”[38] Therefore, because the child was born during the women’s civil union, both women were recognized as parents under Vermont law, and under comity, the New York Court of Appeals would defer to that policy and hold that both women were parents in New York.[39] Thus, giving Debra H. parental custody and visitation rights.

What does this mean?

Both decisions grant a more defined list of rights as it applies to family matters in same-sex relationships.  Same-sex partners now know that equitable estoppel can hold both partners chargeable for child support, and that the doctrine of comity, while it will not recognize a valid civil union for divorce purposes, will find parental rights as long as the state forming the civil union recognizes civil union parental rights.  New York’s parental rights laws, however, are unchanged; therefore, if same-sex partners in New York wish to raise a child without a civil union, the non-biological partner must adopt the child in order to be given parental rights.  This may not seem like much, but these are huge steps in defining same-sex partnership rights.


[1] Debra H. v. Janice R., 930 N.E.2d 184, 195 n.5 (2010) (New York has held that the surviving partner of a Vermont civil union was, “entitled to recognition as a ‘spouse’ under New York’s wrongful death statute”).  Further, the Court of Appeals only expands recognizing the validity of a foreign state’s civil union for issues of parentage.  Id. at 197.  New York has yet to decide if it recognizes civil unions of other states in New York marital claims.  Id. at 195–96.

[2] H.M. v. E.T., 930 N.E.2d 206, 207 (2010).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] H.M., 930 N.E.2d at 207–08.

[9] Id. at 208.

[10] Id.

[11] Id. at 208–09.

[12] Id. at 208.

[13] Id.

[14] H.M., 930 N.E.2d at 209.

[15] Id.

[16] H.M. v. E.T., 76 A.D.3d 528, 530 (2d. Dep’t 2010).

[17] Id.

[18] Id.

[19] Id.

[20] Id. (citing Wener v. Wener, 35 A.D.2d 50, 53 (1970)).

[21] Id.

[22] Debra H. v. Janice R., 930 N.E.2d 184, 186 (2010).

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 188–89.

[27] Id. at 189 (citing Alison D. v. Virginia M., 77 N.Y.2d 651 (1991)).

[28] Debra H., 930 N.E.2d at 190.

[29] Id.

[30] Id.

[31] Id. at 191.

[32] See generally, Troxel v. Granville, 530 U.S. 57 (2000) (noting that a parent’s interest in the care and custody of his or her child is a fundamental right, untouchable absent a finding that the parent is unfit).

[33] Debra H., 930 N.E.2d at 191.

[34] Id.

[35] Id. at 192 (Debra H. requested the Court replace the bright-line rule with a non-objective test which would recognize a de facto parent, but the Court rejected it because it was, “likely often to be contentious, costly, and lengthy”) Id.

[36] Id. at 194.

[37] Id. at 196.

[38] Id.

[39] Debra H., 930 N.E.2d at 196.

 

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Filed under Constitutional Law, Human Rights, Matrimonial Law, New York Court of Appeals

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