Articles Posted in Same sex marriage & divorce

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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.


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As previously discussed on this blog, New York’s highest court recently issued the landmark New York child custody decision Matter of Brooke S.B., which expanded the definition of a “parent” under Section 70 of the New York Domestic Relations Law. The court ruled that a same-sex partner of a child’s biological parent could be considered a “parent,” if the parties agreed to share child-raising responsibilities. Following that ruling, a New York court decided Gunn v. Hamilton, which applied Matter of Brooke S.B. to determine custody of a same-sex couple’s adopted child.

The parties’ relationship began in 2007 and ended in 2009. During the course of their relationship, they planned to adopt and raise a child together. However, before they could adopt a child, the relationship deteriorated. In fact, the parties memorialized the breakup with a separation agreement, which was finalized in May 2010.

In the next year, the respondent moved forward with the adoption process and finalized the adoption in August 2011. When the respondent and her adopted child returned to New York, the petitioner became involved in the child’s life. The parties never entered into a formal custody sharing agreement, and when the respondent decided to move from New York to England, the petitioner filed a lawsuit for joint custody, the setting of a visitation schedule, and ancillary relief.

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Under New York law, both of a child’s parents have rights regarding custody and visitation, as well as obligations regarding support. As the legal landscape regarding marriage changes and evolves, the definition of “parent” has also evolved. More than 20 years ago, the New York Court of Appeals held in Alison D. v. Virginia M. that only biological or adoptive parents have standing to petition for visitation. In the summer of 2016, the court overturned this precedent in Matter of Brooke S.B., allowing the former same-sex partner of a child’s biological mother to petition for visitation. The petitioner had a longstanding relationship with the child that continued for years after her relationship with the biological mother ended, and the court recognized that she could be considered a “parent” under the law.

Section 70 of the New York Domestic Relations Law states that “either parent” of a child may petition a court to make orders regarding custody and visitation rights. The statute does not, however, provide a distinct definition of a “parent.” In 1991, the Court of Appeals ruled in Alison D. that a “biological stranger to a child” is not a “parent” within the meaning of § 70 and therefore lacks standing to seek visitation rights.

The petitioner in Alison D. was involved in a romantic relationship with the respondent. They decided to have a child together, and the respondent conceived via artificial insemination. She gave birth to a boy in July 1981. The child took the petitioner’s last name, despite the lack of any legal relationship between them. The petitioner and respondent ended their relationship in 1983, but they worked out an agreement for visitation and support payments by the petitioner. This lasted several years, but eventually the respondent cut off the petitioner’s access to the child. The petitioner sought a court order under § 70 for visitation. Even though the child knew both the respondent and the petitioner as “Mommy,” the court denied the petition for lack of standing.

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The right of same-sex couples to marry has been the law of the land throughout the United State for almost two years, when the U.S. Supreme Court issued its decision in Obergefell v. Hodges. While the court noted in Obergefell that most states already allowed adoption and fostering by same-sex couples and gay or lesbian individuals, some states continue to prohibit it. The Nebraska Supreme Court recently issued a decision, Stewart v. Heineman, overturning a state policy prohibiting gay and lesbian people from serving as foster parents. While this ruling only applies to Nebraska, it is another important step forward for the rights of same-sex couples.

A federal district court struck down a Mississippi law banning adoption by same-sex couples last year, but no nationwide standard yet applies in this regard. A U.S. Supreme Court decision from 2016, E.L. v. V.L., held that states must recognize out-of-state adoptions by same-sex couples, but the Supreme Court has not considered the constitutionality of gay adoption or gay fostering bans within a state. A Nebraska policy regarding fostering therefore remained in effect after both Obergefell and E.L.

The Nebraska Department of Health and Human Services (DHHS) issued an administrative memorandum in 1995, titled Memo 1-95, directing the department not to make foster placements “in the homes of persons who identify themselves as homosexuals.” The memo further directed the department not to license such persons as foster homes. According to the Nebraska Supreme Court’s decision in Stewart, state officials had generally concluded that Memo 1-95 was unenforceable with regard to licensing.

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The U.S. legal system has made numerous recent advances regarding the legal recognition of “non-traditional” family relationships. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges struck down laws prohibiting same-sex marriage across the country. This has led to changes in the law regarding the custody rights of people who have helped raise a child but are not a biological parent of the child. The New York Court of Appeals issued an important ruling in 2016 that effectively expanded the definition of “parent” to include same-sex partners of a biological parent. In early March 2017, a New York court granted custody of a child to three people who had raised the child together while involved in a committed polyamorous relationship—sometimes referred to as a “throuple.” The judge cited the child’s own statements in the ruling, noting that the child knows “two women as his mother” and that all three had raised him “in a loving environment.”

Prior to 2016, New York law was based on a 1991 Court of Appeals decision, Alison D. v. Virginia M., which held that someone who is not a child’s biological parent lacks standing to sue for custody. The case involved a lesbian couple who had a child through artificial insemination. The respondent gave birth to the child, and she and the petitioner “jointly cared for and made decisions regarding the child” for several years. After the relationship ended, the respondent gradually restricted the petitioner’s access to the child until she was cut off entirely. The petitioner sued for custody rights, but the court held that she lacked standing as a “parent” under § 70 of the Domestic Relations Law. A dissenting justice criticized the court’s reliance on “biology as the key to visitation rights.”

The dissent in Alison D. noted that the holding would “affect a wide spectrum of relationships” beyond the millions of children of same-sex parents, such as step-parent relationships. Obergefell dealt with some of the issues brought up in Alison D. by effectively legalizing same-sex marriage nationwide. The Supreme Court held that the Fourteenth Amendment’s Due Process and Equal Protection Clauses allows same-sex couples to marry. In August 2016, the New York Court of Appeals reversed Alison D. in two consolidated cases, Matter of Brooke S.B. and Matter of Estrellita A. The court noted that Obergefell specifically mentioned the benefits of marriage equality for “the children being raised by those couples.”

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The past few years have brought considerable changes in family law. New York enacted marriage equality statewide through legislation in 2011, while same-sex couples in many states gained the right to marry through state or federal court decisions. A 2013 Supreme Court decision paved the way for a 2015 decision that struck down laws across the country that limited the definition of marriage. As of late January 2017, a new administration has moved into the White House, and many in the federal government have bluntly stated their opposition to marriage equality. The law in New York seems unlikely to change without major political upheavals, since it was the result of legislation. In other parts of the country, however, people have already begun asking courts to review marriage rights.

In June 2011, the Marriage Equality Act became law in New York. The bill amended the Domestic Relations Law by adding two sections. Section 10-a states that a marriage cannot be found to be invalid solely because the two spouses are of the same sex. It further states that all laws, regulations, court decisions, and public policies related to marriage have the same legal effect for same-sex couples as for opposite-sex couples. Section 10-b grants exemptions to religious organizations and certain other private entities, stating that they are not legally obligated to accommodate events related to same-sex marriage.

The U.S. Supreme Court’s 2013 decision in United States v. Windsor was its first major decision regarding marriage equality. The plaintiffs were married in Canada and lived in New York. Their marriage was legally recognized in both locations, but after one spouse died, the other was denied federal estate tax exemptions under the Defense of Marriage Act (DOMA). This 1996 law excluded same-sex spouses from the federal definition of “marriage.” The court struck down DOMA as a violation of due process. This opened up the possibility of federal benefits for same-sex married couples around the country. Two years later, the court’s decision in Obergefell v. Hodges cited the Fourteenth Amendment in striking down state laws excluding same-sex couples from the right to marry.

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The U.S. Supreme Court’s ruling in Obergefell v. Hodges has effectively made same-sex marriage legal in all 50 states. Thirty-five states, the District of Columbia, and Guam had already given legal recognition to same-sex marriages through legislation or court order. Several more states, while refusing to issue same-sex marriage licenses, recognized out-of-state same-sex marriages. Couples who married in a state that allowed same-sex marriage but moved to a state that did not recognize their marriage had found themselves in a difficult position if they tried to file for divorce. The Obergefell ruling appears to have resolved those conflicts, although legal problems may persist in some areas.

The Supreme Court’s decision in United States v. Windsor struck down the federal Defense of Marriage Act (DOMA) in 2013. DOMA, originally passed in 1996, denied federal benefits to same-sex married couples, even if they had a lawfully issued marriage license. The Obergefell plaintiffs applied for a marriage license in Ohio after the Windsor decision came down, and they filed suit against the state when they were denied. The couple also sought to have one of them designated as the “surviving spouse” of the other, who was suffering from a terminal illness.

The plaintiffs prevailed in U.S. district court, but the Sixth Circuit reversed the ruling. The Supreme Court consolidated their case with cases from Kentucky, Michigan, and Tennessee. It held in a 5-4 ruling on June 26, 2015 that state bans on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment. The decision overturned the Supreme Court’s 1972 action in Baker v. Nelson, when it declined to hear the appeal of a Minnesota case on the grounds that a same-sex couple’s marriage claim did not present a “substantial federal question.”

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Same-sex marriage has made tremendous strides in recent years, with all but 13 states allowing same-sex couples to get married. The U.S. Supreme Court is expected to rule this summer on the question of whether states may prohibit same-sex couples from marrying in Obergefell v. Hodges. New York has recognized same-sex marriages from other states since 2008, and legislation passed in 2011 formally recognized same-sex marriage. Since laws continue to vary from state to state, however, the issue remains highly complicated and difficult, especially with regard to legally married couples who want to divorce. Many states that do not allow same-sex couples to marry also do not allow them to divorce. Other states have allowed individual couples to divorce despite not officially recognizing their marriage.

New York began recognizing out-of-state same-sex marriages with the decision in Martinez v. County of Monroe, 2008 NY Slip Op 00909, which specifically dealt with spousal benefits for state employees. The court held that, since New York recognizes out-of-state opposite-sex marriages, it must recognize same-sex marriages legally performed in other states. A New York court granted a divorce to a same-sex couple, who were legally married in Canada, around the same time in Beth R. v. Donna M., 2008 NY Slip Op 28091. In 2011, the New York Legislature passed the Marriage Equality Act, which amended the New York Domestic Relations Law to allow same-sex marriage within the state. See e.g., N.Y. Dom. Rel. L. § 10-A.

The U.S. Supreme Court issued two rulings on same-sex marriage in 2013:  United States v. Windsor, which struck down the federal Defense of Marriage Act under the Due Process Clause of the Fifth Amendment, and Hollingsworth v. Perry, which struck down a California ballot initiative that banned same-sex marriage. The California case was decided on a narrow question of standing, so the Supreme Court has never definitively ruled on same-sex marriage itself. As for state laws, according to the Human Rights Campaign, 37 states and the District of Columbia currently recognize same-sex marriage.

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