A Court's recent ruling denying a non-birth mother's adoption petition, while a strong endorsement of marriage equality, is nevertheless a minefield of uncertainty. In Matter of the Adoption of a Child Whose Name is Seb C-M, X, a non-birth mother, whose name appeared on the child's birth certificate along with the birth mother's name, filed a petition of adoption, which was uncontested, in an effort to reinforce her parental status. Unlike the uncertainty that has plagued our society due to the constant morphing of the concept of "family," adoption has always cemented a parent-child relationship between same sex couples even in states that do not recognize same sex marriages. This recent case threatens to make adoption between same-sex couples just as uncertain.
The couple are residents of New York who were lawfully married in Connecticut in April 2011 prior to New York's enactment in July 2011 of the Marriage Equality Act. Despite their lawful marriage, despite New York's Marriage Equality Act, despite that both women's names appeared on the child's birth certificate and despite that the child has the surnames of both parents, the non-birth mother sought to adopt the child so as to cement the parent-child relationship as has long been the custom and practice in same sex relationships. Surrogate Lopez Torres denied the non-birth mother's petition holding that is was "neither necessary nor available" in this case.
The Court 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 the petitioner and her spouse remained insufficient to establish a parent-child relationship between a parent and a child born of that marriage. Significant to the Court was the fact that both parents' names already appeared on the birth certificate thereby establishing the women's parental status. The Court held that adoption is not warranted or permitted to affirm an existing, recognized and protected parent-child relationship.
Thus, while the Court's ruling clearly is an endorsement of Marriage Equality in New York and precedent for eliminating the need for adoption in same sex marriages where both individuals names appear on the birth certificate, there is no way to determine how a jurisdiction that does not recognize marriage equality and is hostile to same-sex adoptions will rule if the non-birth mother's parental status is challenged there.
It will be important to keep a watchful eye on the New York Courts to see if they follow the precedent set by Surrogate Lopez Torres.