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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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Adoptions often end joyfully with the creation of a new family, but they often originate from tragedy. A child in an adoption proceeding may have been orphaned or removed from their birth parents’ home because of abuse or neglect. As happy as the adoption may be, the child is likely to have questions about their origins. New York law makes answers difficult to find for multiple reasons. Some of those reasons make sense in the New York of 2017, while others clearly originated in an earlier era. The principles that led to the establishment of these rules continue to influence New York’s family laws, particularly those involving child custody and child support.

Under § 114 of the New York Domestic Relations Law (DRL), records of adoptions involving an authorized adoption agency are sealed upon the completion of the adoption. Access to these records is almost entirely prohibited without a court order, which courts may only grant in very limited circumstances. A court clerk may issue a certificate of adoption to authorized individuals or agencies, but the certificate may only include a child’s new name, the names of the adoptive parents, and information about the adoption proceeding itself. It may not disclose the child’s pre-adoption name, nor may it disclose any information about the child’s birth parents.

The New York County Surrogate’s Court provided an overview of the history of this statute in footnote 34 of a 2007 ruling, Matter of Doe. The court noted that the statute, first enacted in 1924 and amended in 1938, “reflect[ed] in part the mores of the day.” The purpose of sealing adoption records, according to the court, included protection of the adoptive parents from interference by the birth parents, as well as protection of the birth parents’ privacy. Other reasons, however, included “shielding [the birth parents] from the humiliation of public knowledge of unwanted pregnancies or inability to support” and “shield[ing] the adopted child from the stigmatization of illegitimacy.” This type of rationale is, hopefully, less relevant in the 21st century than the 1920s.

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Family law cases in New York City can involve numerous complicated and difficult issues, requiring careful planning and preparation for emotionally trying proceedings. This is probably most true for proceedings involving the custody and care of children, which can occur in connection to a divorce or between parents who were never married. New York law allows parents and legal guardians to petition to change a child’s name. The process is far from simple, especially when someone seeks a name change in connection with a family law proceeding.

No specific legal standard exists for children’s names. A child commonly takes their father’s surname, but this is not required by law. Section 4132 of the New York Public Health Law establishes the form and content requirements for a birth certificate, but it does not expressly require the child’s name. As far back as 1987, the New York Times was reporting on changing social norms regarding baby surnames, largely related to women who do not take their husband’s name when they get married. Now that same-sex marriages are legally recognized throughout the country, naming conventions are likely to go through more changes.

Name changes are fairly common in divorces, such as when women want to return to their maiden name or another prior name. Children’s names potentially present greater controversy. The New York Civil Rights Law allows courts to order a name change for a minor, provided that “there is no reasonable objection” to the change and that the minor’s “interests…will be substantially promoted by the change.” The courts have delved further into these questions.

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Family courts, when dealing with disputes involving children, must consider a child’s best interests and rule in a way that protects the child. This can, at times, include orders restraining the parents and possibly other adults from making certain statements while litigation is ongoing. For example, a court may order parents not to discuss ongoing litigation with the children. The First Amendment to the U.S. Constitution sets very strict limits on a court’s power to prevent people from speaking on particular issues. A 2016 appellate court decision from Georgia examined this issue. The court overturned an injunction barring the parents from making any public statements about the case, including on social media, until the youngest child turned 18—i.e., after 10 years.

The First Amendment is very often misunderstood in public discourse. It only restrains the actions of the government with regard to private individuals’ speech. The U.S. Supreme Court summarized the First Amendment’s free speech protections in its 1972 decision in Grayned v. City of Rockford. While the “government has no power to restrict [speech] because of its message,” the court noted “that reasonable ‘time, place and manner’ regulations…are permitted.” This means that government officials cannot prevent a person from saying something solely because they do not like what the person has to say, but they can prevent the person from shouting it through a megaphone outside someone’s house in the middle of the night.

Since the First Amendment generally only allows the government to restrain speech based on “time, place, and manner,” most efforts to prevent a person from saying something in advance—often known as prior restraint—are unconstitutional. In 1963’s Bantam Books, Inc. v. Sullivan, the Supreme Court stated that “[a]ny system of prior restraints of expression…bear[s] a heavy presumption against its constitutional validity.” The injunction at issue in the Georgia case was arguably a form of prior restraint.

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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 New York family law system was built on an assumption that children resulted from a union of one female and one male parent, but social and technological changes have rendered this view far too narrow. Assisted reproductive technology (ART) allows a parent to conceive with the help of a sperm donor. While some states have enacted laws addressing ART, the rights and obligations—or lack thereof—of a sperm donor regarding the child remain unclear in many cases. Two court decisions from 2016 show how difficult this issue can be. In one case, a court held that a man who donated sperm to a lesbian couple is not liable for child support. Another court ruled that a sperm donor has parental rights to the child.

State laws regarding establishment of parentage bear many common elements. Most states presume that a husband is the father of a child born to the wife during the marriage. An unmarried father can claim paternity of a child, or a court can order genetic testing of an alleged father. Several decisions from the U.S. Supreme Court, including 1968’s Levy v. Louisiana, invalidated state laws that treat “illegitimate” children differently than children born to married parents. These decisions probably helped pave the way for many forms of ART.

ART laws are not consistent across the states. Section 702 of the Uniform Parentage Act (UPA) of 2002 expressly states that a donor is not a legal parent of any child conceived as a result of the donation, but New York has not enacted the UPA. New York law states that a child “born to a married woman by means of artificial insemination” is legally the child of the woman and her husband, provided that a licensed medical professional performed the procedure. It says nothing about same-sex married couples or ART performed without medical assistance. Court decisions in New York have mostly found that sperm donors are not legal parents.
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Divorce is a matter of state law in the U.S. in almost every circumstance. Each state has jurisdiction over family law disputes within its territory, but more and more people’s lives are not contained within a single state. People living in New York City might own real property in another state, and assets can cross state lines in other ways. This can create complications in a divorce case, since state courts can only exercise jurisdiction over property located in that state. New York law allows courts to distribute property located in this state after issuance of a divorce decree in another state or another country. A recent order by a Manhattan court addressed a dispute over property located in New York City, between spouses whose divorce case was pending in Monaco. THA v. MAA, No. 161488/2015, dec. order (N.Y. Sup. Ct., N.Y. Cty., Jan. 18, 2017). The order offers an idea of how and when a party to a divorce should seek a New York court’s involvement in distribution of property.

The dispute in THA involves two main legal issues: the alleged concealment of marital property and the court’s jurisdiction over property located in New York City. In a divorce matter, the spouses must make a full disclosure of all marital property in their possession or subject to their control. Intentional concealment of marital property from the other spouse or the court can result in sanctions, and can also affect how the court orders the distribution of property.

In order to bring an action in a particular court, the plaintiff or petitioner must be able to show that the court has jurisdiction over the defendant, known as in personam jurisdiction, or over a particular item of property, known as in rem jurisdiction. A New York City court might have in personam jurisdiction over the parties to a divorce if they live here, but it would lack in rem jurisdiction over property located outside of the State of New York. If a divorce decree issued by a court outside of New York affects property located in New York, § 236(B)(5) of the Domestic Relations Law (DRL) allows the courts of this state to order the distribution of such property, mostly in accordance with New York law.
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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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To the State of New York, a marriage is a civil arrangement between two people to live together, support one another, share property, and possibly raise children. This view of marriage may lack romance, but it effectively addresses the needs of a diverse population. Marriage remains deeply connected to religious faith and practice for many people, and a particular religious tradition may have rules regarding marriage and divorce that differ from state law. This raises the question of how New York courts might address disputes of a religious nature. The short answer is that they do not adjudicate these disputes, except to the extent that participation in a religious procedure is part of a pre- or post-marital agreement, or that one or more elements of a religious procedure violate the law or public policy.

New York expressly defines marriage as a “civil contract” in the Domestic Relations Law (DRL). Both parties to a marriage must be “capable in law of making a contract,” and they must give their consent. The DRL does not prescribe any particular procedure for solemnizing a marriage, so couples are largely free to use whichever religious practice, secular procedure, or completely-made-up ceremony they want. The law mostly does not concern itself with the exact manner in which a couple gets married, as long as they meet the basic requirements.

Divorce in New York is also a civil matter, at least as far as the courts are concerned. The DRL requires parties to resolve issues related to property distribution, support and maintenance, and child custody. A spouse who wants to follow religious procedures during their divorce can get some support from the court, but only if the spouses signed a marital agreement stating that they would use those procedures. The court can enforce the agreement by ordering the other spouse to participate. These procedures often involve arbitration based on religious law, and the civil courts can also confirm—or reject—arbitration awards.

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Disputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).

Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.

The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.

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