New York Woman Cannot Assert Custody Rights Over Child Adopted by Ex-Partner


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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.

The petitioner argued that she was a parent because she was involved in the adoption process after the parties had separated. To support this claim, the petitioner cited the $350,000 she paid in connection with the parties’ separation agreement. This money allowed the respondent to purchase a home that would pass the adoption agency’s inspection. She was also involved in the child’s health care, schooling, and after school activities.

The respondent, on the other hand, argued that the petitioner merely acted in the role of godmother and that the respondent never facilitated, condoned, or encouraged a relationship with the adopted child. In addition, the respondent offered as evidence numerous witnesses who testified that the petitioner was never identified as the adopted child’s parent. Furthermore, the respondent presented testimony that the petitioner expressed that she did not want to be a parent at all.

The court’s ruling modified the holding articulated in Matter of Brooke S.B. by requiring that the petitioner show, by clear and convincing evidence, that the parties had a plan to adopt and raise a child together that continued unabated. The court included the italicized language because an adoption plan, when formed, does not continue to exist without limitations. The parties’ subsequent actions and intent can terminate the adoption plan between same-sex partners, according to the court’s ruling.

The petitioner’s statements that she did not want to be a parent and the testimony that demonstrated that she was more of a godmother than a parent meant that the adoption plan was no longer in effect when the child was adopted, and the respondent was the sole adopting parent.

A legal dispute over issues like child custody requires the assistance of a knowledgeable and experienced New York City child custody attorney. Ingrid Gherman has advocated for parents for over 30 years and can help you understand your rights and obligations under state law. Contact us online or at (212) 941-0767 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Definition of “Parent” Evolves to Include Same-Sex Couples, Thanks to New York’s Highest Court, New York Divorce Attorney Blog, May 22, 2017

State Supreme Court Overturns Ban on Same-Sex Foster Parents, New York Divorce Attorney Blog, May 15, 2017

New York Judge Grants Legal Custody of Child to Three People, New York Divorce Attorney Blog, March 30, 2017

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