Earlier this year, In Matter of the Adoption of a Child Whose Name is Seb C-M. X, which was the subject of an earlier blog, the non-birth mother filed a petition of adoption. The petition was uncontested by her same sex partner, so as to reinforce their parental status. The Surrogate denied the petition holding that it was "neither necessary nor available". The Surrogate reasoned that if it were to entertain granting the adoption, such action would imply that true marriage equality remains yet to be attained in New York. If the lawful marital relationship between petitioner and her spouse remained insufficient to establish a parent-child relationship between a parent and a child born of that marriage.
In the recent Nassau County Family Court case of Jann P. v. Jamie P., the Court denied the ex-wife's petition for custody based upon the fact that Jann, the non-birth mother, did not adopt the child and thus, had no standing.
Jann and Jamie, same sex partners, were married in 2012. Jamie gave birth to John, but Jann did not adopt John at the time of his birth or thereafter. The parties' separation agreement described John as "a child of the marriage", provided that the parties viewed Jann as John's parent and contemplated the possibility of sharing custody and giving Jann visitation rights. Jann therefore argued that Jamie should be equitably stopped from refusing to permit Jann to fulfill a parental role in John's life. Her primary argument was that it was in John's best interests for the parties to share joint custody.
The Family Court held that the presumption of legitimacy created by the Domestic Relations Law was inapplicable here as Jann was admittedly not John's birth parent. Significantly, Jann was also not the adoptive parent of John. The Court further held that Jann could not employ a paternity proceeding, like a man in the same position, as a means of establishing standing to seek custody as the law does not provide for a proceeding to declare maternity. Jann argued that denying her standing to bring a custody petition would constitute a denial of equal protection of the law based upon her sexuality. While the Court noted the inequity of the imbalance of remedies available to Jann. Nevertheless, the Court granted Jamie's motion to dismiss Jann's custody petition.
Based upon the conflict in the above two cases, same sex couples are faced with the impossible predicament of having the Surrogate Court deny an adoption petition as "neither necessary nor available" and the Family Court dismissing a custody petition because, absent an adoption, a non-birth mother has no standing to maintain a custody proceeding. It is clear that either the legislature or the Appellate Courts will have to resolve this dilemma.