New York family law is experiencing tremendous shifts that are affecting child custody disputes between same-sex partners. One New York Court of Appeals decision in particular, Matter of Brooke S.B., significantly expanded parental standing rights for same-sex partners in 2016. In what is described as a logical extension of that case, the New York Supreme Court, Appellate Division, First Department issued a recent decision, holding that a legally married same-sex couple that enters into a jointly executed surrogacy agreement receives the presumption that the child is the legitimate child of both partners.
In Carlos A. v. Han Ming T., the appellant and respondent lived together in the United Kingdom, where they entered into a civil union. Years later, their civil union was converted into a legal marriage and backdated as of 2008. In 2013, the couple entered into an egg donor and surrogacy agreement. Both partners contributed sperm. The embryo that was eventually transferred to the surrogate was only fertilized with the appellant’s sperm. The child was born in 2014. The appellant and respondent lived as a family together until 2015, when the respondent returned to the United Kingdom in search of a job. The appellant then started a relationship with another person and moved to New York while the respondent was in the United Kingdom. The appellant’s new partner commenced a New York adoption petition for the child.
The family court granted the adoption petition. However, the respondent learned that several crucial facts had not been disclosed, including the respondent’s role in the surrogacy process and his action for joint custody of the child. The respondent moved to vacate the adoption because he argued that he was entitled to notice of the adoption and a hearing because he had parental rights under New York law. The family court granted the respondent’s motion to vacate under New York Domestic Relations Law Section 114(3).