New from New York: Losing and Winning at the Same Time

I’ve written a  couple of times in the past  about an important parentage case pending in the NY Court of Appeals.  (This is New York State’s highest court.)  The case is Debra H v. Janice R and  the decision was published this morning.  [I’ll add a link to the NYTimes coverage, but I think they’ve got the main point wrong–while the individual plaintiff won, lesbian and gay parents as a group did not.]  

I should note at the outset that many, perhaps most, of the specific facts in the case are contested and I have no access to facts beyond what is in the opinion.   So most of what I want to say is about the court’s reasoning and the law it establishes.    

The case is one of those regrettable fights between lesbians who had been raising a child together.   Janice gave birth to a boy in December 2003 having become pregnant by insemination.   The women separated in 2006.    Debra had visitation with the boy until 2008 when Janice cut off all contact between Debra and the boy.  Litigation followed.  At that point, Janice was a legal parent with all the accompanying rights and obligations.   Debra was, under New York law, a legal stranger.   A legal stranger has no rights to seek custody or visitation of a child. 

If Debra had adopted the child, there would be no question of her right to seek custody and visitation.   (New York permits second-parent adoptions.)   But Janice had never allowed Debra to adopt the child and as Janice is a lawyer, I will assume Janice understood what she was doing. 

There was (and alas still is) an existing precedent in New York called Alison D. v. Virginia M.   That case holds that a person in the position of Debra has no standing to seek custody or visitation, no matter what her relationship to the child had been.  Thus, without an adoption, were she a loving and present parent for ten years, she would still be, under New York law, a stranger to the child.   To put this another way, New York refused to recognize any sort of de facto parentage.  

Given this precedent, Janice’s refusal to allow Debra to adopt meant that Debra was on very thin legal ice.    In seeking visitation, Debra asked the court to overrule Alison D.   She sought recognition as a parent based on equitable estoppel.  In essence, she asked the court to recognize the reality of her role in the child’s life rather than allow legal formalities to control.   In the opinion issued this morning, the court refused to do that and instead reaffirmed the vitality of Alison D. 

The court justifies this result by asserting that a simple and sharp rule (no rights unless you are genetically related or adopt) is better than a fuzzy one that turns on the actual relationships of the child.  And given this case, where the facts are apparently very much in dispute, perhaps that might seem reasonable.  

The problem is the court entirely ignores the reality of people’s lives, including the lives of children.   Children do not know who holds a legal right to be a parent.   They do not form bonds based on the presence of proper documentation, nor do they refrain from forming ties because a person’s legal status.   Children live in the real world, with real people and real relationships.   Real relationships are, by their nature, complicated and multilayered.  Sometimes they are even messy.   They cannot be proved by a simple sheet of paper.    But this doesn’t mean that they are not real.  

In fact, their complexity is their strength.   Since relationships are constructed of a myriad of interactions over time and space they can be enveloping, sustaining and supportive in ways that a sheet of paper cannot be.  

We all know that just because there is an easy way doesn’t mean it is the right way.   That’s the case here, too.   Easy doesn’t begin to get at the reality of human lives. 

I also think the court has magnified the difficulty of examining the real relationships at issue in these sorts of cases.   If a person has played the role of parent is it really that hard to prove it?   If one parent has encouraged another to play that role, there’s typically lots of evidence of that.   Take a look at some of the other cases I’ve discussed if you want to see what I mean.     

Now there’s much more to say about this decision.   Perhaps most importantly, I should note that even though the court reaffirms Alison D, Debra wins.   She wins not because she acted like a parent but because a month or so before the birth of the child, she and Janice travelled to Vermont and entered into a civil union.   

The court concludes that Vermont would have recognized Debra as a parent in the same way a married man is recognized as a parent when his wife gives birth.    (Coincidentally, this is the very presumption I discussed in a totally different context yesterday.)      The court then decides that out of respect for Vermont’s legal interests (this is called “comity”), New York should recognize parentage just as Vermont would.    In sum, since Debra would have been a parent in Vermont, she is found to be a parent in New York. 

Now I have a good deal more to say about this (and some other points in the opinion) but I feel I’ve gone on quite long enough for now.  So I’ll come back to this again shortly.    Meantime let’s just notice that, if nothing else, the court seems to be consistent in its elevation of form over substance.   The civil union document accomplishes what proof of lived experience could not.

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5 responses to “New from New York: Losing and Winning at the Same Time

  1. Wow. Very interesting.

    Why is it so difficult to rule on substance over form? Is it a reluctance on behalf of a judge?

    I agree it would not be hard to prove the presence of a parent in a child’s life. The quality of that parenting in a custody case will always be up for debate and more difficult to ascertain, but in the best interest of children, shouldn’t the court at least try?

    This made me think of common-law-marriage a bit, that there’s a time period in which one is considered “married” in terms of benefits and property. Do you have that in the States? If so, and a child was considered to be a dependent and had been in receipt of benefits could that not prove parenthood without adoption and marriage?

    Hmm…I’m not sure what happens in that case here in Canada.

  2. Julie, note that the Vermont law doesn’t either account to the child’s reality but falls back on a legal formality (One which I happen to believe is ridiculous).

    And it also seems absurd to me that New York should suddenly consider it bound by Vermont laws.

    • I agree about Vermont law–it is also just reliance on legal formality. I’d have been much happier with a decision on the other ground.

      In the grand scheme of things, it’s not so odd that NY accepted VT’s judgment on this. States generally do this routinely, as a part of what is called comity. A couple that gets married in Ohio is recognized as married by every other state. A man who is recognized as a father in Ohio (because he is married to a woman who gives birth) will be recognized as a father in every other state. I think it is seen as a general respect–each state for the others–and also as a matter of convenience–imagine if you had to get married in every state or had to re-establish parentage?

      With all the fuss about lesbian and gay issues, it’s been more common for states to decline to recognize each other’s law. But that’s really more the exception than the rule.

  3. This is a thought-provoking summary of the case. Too bad some of the glbt media is missing the whole story.

    I don’t get why the court granted comity (if that’s the correct phrase) to VT’s parental laws that *depended* on the civil union, when they won’t recognize the civil union, and the couple never lived as actual parents in Vermont.

    As a result, it sounds like when you get “unioned” in a different jurisdiction, you carry their laws back with you to NY — parental law, so perhaps also inheritance law, tax law…

    On the other hand, if you same-sex *marry* in another jurisdiction, your marriage is recognized, and becomes in effect a NY marriage and the NY parental and other laws apply. Is that right?

    Although this decision probably benefits me as a Canadian-married nonbio mom, I hate to see the piece of paper given more credence than the child’s relationships.

    Even weirder to me is that the decision depended, ultimately, on a contract between adults (the civil union) more than on the fact that Janice explicitly denied the adoption, i.e. she did not want Debra to be a legal parent even while they were living together.

    That latter fact is seriously disturbing, of course, but it’s not the simple relationships that end up in court cases like this.

    “The civil union document accomplishes what proof of lived experience could not.” — exactly (mostly) why I got married, and why the whole business is still troubling.

    • What you point out is indeed a real oddity. It would be one thing to say that as a matter of cominty, we here in NY recognize the VT civil union. (And the court doesn’t say that.) The next step you’d expect would be to use NY law to figure out what follows. Maybe you’d reach the same result because NY has a presumption of parentage as well.

      Think about a heterosexual couple who goes to Hawaii to get married. They come back and NY recognizes the marriage, but it does not apply Hawaii law to figure out what the various incidents of marriage are. It applies NY law. By contrast, because this couple travelled to VT for the civil union they seem to bring VT law back to NY with them. It doesn’t generally work that way.

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