Parents Who Are Not (And Never Were) Partners Approved in NY

I know there is a lively discussion elsewhere in the comments but I wanted to move along and post this case, which I think opens wholly different issues for discussion.   It’s not the first time I’ve blogged on the topic, but I’m not (just at the moment) taking the time to link to earlier posts.

The opinion (which I am uploading so you can read it yourself) considers whether a second-parent adoption can be completed where the proposed parents are not and never have been a couple.  There’s also been a bit of press coverage.

In this case, KAL and LEL are and have been very good friends.   KAL wanted to become a parent and, as friends will, she confided this desire to LEL.  He offered to provide the sperm and be a coparent.

Now if that had worked, this would actually be a fairly easy case, because they live in NY.   Had he provided sperm and had she gotten pregnant and given birth, they would both be legal parents.  But it was not to be.   Conception did not occur.   After a long time trying, LEL and KAL decided to adopt a child.   And in 2011 KAL adopted G.   (They could not adopt together as they were not married.)

Since then KAL and LEL have lived as a somewhat non-traditional family.  KAL and LEL do not live together, but instead retain separate households.   G travels back and forth between them.   But importantly, KAL and LEL are able to harmoniously coparent G.   (You could contrast this to other instances in which separated parents maintain separate households but are not so harmonious.)   The current case arises because LEL wants to adopt G as a second parent, thereby protecting the relationship between G and LEL.   (The opinion does a nice job of surveying some of the reasons why this is a good idea.  See pages 3-4.)

There are really two questions here.  One–important to the parties because it determines the outcome of the case, but less an academic issue–is whether NY law allows this.   That, in the end, depends on whether LEL and KAL are “two unmarried adult intimate partners” (emphasis added)–because that is the category in the adoption statute that would allow them to adopt.   (See pages 4-5.)

Now I have to say that if you asked me, just off-hand, what “two unmarried adult intimate partners” meant, I’d tell you it was probably about sex.   I would have said that it was designed to catch all those unmarried couples–who of course for a very long time included gay and lesbian couples–who were romantically involved but couldn’t marry.   But Judge Mella, after surveying NY law (as she should) concludes that isn’t what it means.  Her argument certainly looks sound and I’m surely in no position to say she’s wrong.  (Plus I like the result.)   See pages 9-10.

But there is a second issue floating around here–the one I typically prefer to address:  What should the law be?   Should these two people be allowed to become legal co-parents.   And here I’m quite happy to share my opinion–of course they should.  This is, in many ways, akin to a de facto parent case–except the people came to court before the relationship between the adults deteriorated.  (This is, of course, the preferable order.  Far better to sort out the relationships when everyone is happy and cooperative.)

In fact–in real life–G has two parents:   LEL and KAL.   We gain nothing as a society from denying recognition of that.   And we place a child–a child who counts on both those adults–in jeopardy.

Of course, this raises a larger question–why do we expect that parents will be partners–romantic/sexual partners?   I suppose it is partly because we generally think of children as being conceived via sex and we think of sex as occurring between partners.   But of course, not all children are conceived via sex and there is plenty of sex that isn’t between people who I would describe as romantic partners–or any kind of partners.   (Indeed, the most problematic unmarried father cases, to me, are those where there is no real relationship between the man and woman who engage in sex.)

These things being so, it seems like the law should not, perhaps, require sexual partnership as a precursor to co-parenthood.   And that seems to be where the NY court has arrived.  Hurray for that.

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12 responses to “Parents Who Are Not (And Never Were) Partners Approved in NY

  1. Julie,

    Do you see co-parenting situations such as this one becoming more common moving forward?

    • It’s hard to say. I doubt it will become commonplace. The association of the romantic couple as parents is too strong. But it does seem as parenthood becomes separated from conception via sex it is more possible to think about this and I assume there will be more people who choose this path. But truly, I’m no expert. We’ll all find out eventually.

  2. I second the hurrah! A good call for the NY courts.

  3. i think this is cool for the family involved, but it has the potential of really getting out of hand. people who are not either close relatives or romantic partners, seldom live intertwining lives. even if they are really good friends.
    while recognizing the kid’s relationship after it had already developed is one thing, if it springboards into promoting such arrangements from the outset, thats just a total free for all. it reminds me of a delaware law you posted about that any two unrelated people can express intent to parent a child via ART, create the said child, and be named parents.

    • There’s certainly a risk of people in unstable relationships heading down this road. And to the extent that unstable relationships bode ill for the child, that’s a problem. Of course, this happens with sexual partners all the time, but we’d be adding more people to the mix and so you’d presumably run the risk that there would be more unstable pairs trying to raise children.

      I suppose in the end it is about balancing—how much gain/how much risk? How many good outcomes vs. how many bad. And I’m afraid we’d largely be guessing in trying to answer that. But it’s a concern that ought not to be dismissed in any case.

      • See I see two people with offspring as parents or two people who adopted as adoptive parents and I just don’t understand this whole concept of co-parents. Parents come in sets of two and they don’t need to be married to become parents, I never saw any reason for them to have to be married in order to become adoptive parents. Lord knows there are lots of parents who are not sexually intimate or romantically inclined so I just don’t see why we’d have a special little little term to describe parents who are not living together or adoptive parents who are not living together. We use to just call them parents, know that there were two of them and not care whether they were living in the same house or not. Their spouses are step parents and that is pretty much it. The kid looses if the parent has a partner they’d like to marry, cause of the benefits they’d get from their step parent. I don’t see why its controversial especially since half of marriages end in divorce anyway and it’s likely much harder for angry ex-spouses to agree on something than calm friends whose sole focus is on the child they made or adopted. Sounds super healthy to me.

  4. Julie this is totally not something you’d be down with I’m way surprised at you. I thought you were this super old fashioned person that thinks custody arrangements between people who are not romantically intimate were just doomed for failure so better to sever half the kids family that bother trying to have the parents collaborate in separate homes with their respective partners. You totally hate the idea of a father getting to share custody of his kid if the mom has an intimate relationship going on and wants to cut the dad out of the picture. Reconcile the parts that don’t match. If you have come round to collaborative child rearing between parents or adoptive parents that were never married then goodie, welcome to the imperfect world where parents and adoptive parents are people who may or may not be in love with one another but love their kid or their adoptive kid totally and completely and nobody should stand in their way of doing what they need to do for the kid.

    • I can only say that your surprise surprises me, for it suggests you’ve missed my main point all along. I care first and foremost about the relationships forged between the adults and the child. KAL and LEL are, in a very real and concrete way, both functioning parents to the child. The law needs to recognize and protect those relationships. And it doesn’t really matter to me whether the relationship between KAL and LEL is romantic or sexual or completely platonic.

      Now I do also care that KAL and LEL have a functional relationship–as they clearly do. If the adults are completely antagonistic, unable to rise above their own issues for the good of the child, that’s a problem. But it isn’t a basis on which I’d toss one of the parents out.

      Remember that the key question I want to focus on is who are the legal parents of the child? What legal test determines that? Historically, the relationship between people has mattered–as where a husband is a legal parent because he is married to the wife. And there is the whole problem of pregnancy–during which the non-pregnant potential parent cannot really have a relationship with the fetus and may be hard pressed to demonstrate willingness to parent without cooperation from the pregnant person. And I do care if the non-pregnant person completely checks out. But that isn’t because of the relationship with the pregnant person–it’s all about the eventual child for me, I think.

      • Yeah but at the early set up phase before much functional child rearing has yet occurred when a couple’s child is in his or her infancy and they are not married and the mother concealed the pregnancy and birth from the father in favor of pairing off and raising the kid with her new mate or whatever you give preference to her and her new mate over having them split custody and collaborate because they are both committed to their kid and their respective mates might also be equally committed. I favor encouraging the bio parents to both give the kid what they are do and would favor the one who says hey lets collaborate over the one that says hey I don’t want you around I want to go this alone with my friend over here. Why not collaborate and bring your friend along the kid will get extra love and support, don’t cut me out the kid will loose you know? Like not even trying before assuming it would be too complicated because they are not a romantic couple.

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