State's Highest Court Unanimously Recognizes that Non-Biological Mother in Lesbian Couple is Parent

Affiliate: ACLU of New York
May 4, 2010 12:00 am

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NEW YORK – The New York Civil Liberties Union today applauded a unanimous decision by the state’s highest court that a non-biological mother who had entered into a civil union with the biological mother of her child is, in fact, a “parent” under New York State’s law. The NYCLU filed multiple amicus briefs in the case.

“The court today recognized that there are many kinds of families in New York, including LGBT families, and that the children in these families deserve to have their relationship with their parents recognized under the law,” said NYCLU Executive Director Donna Lieberman. “Being a parent is about more than just biology. New York’s highest court has taken a positive step in protecting all of our families and children.”

Debra H. and her former partner, Janice, were in a committed relationship and entered into a Vermont civil union before their child was born in 2003. Debra was present in the delivery room, cut the child’s umbilical cord and generally acted as a parent to the child even though she was not his biological or adoptive mother. When the couple separated in 2006, Debra continued her parental relationship with her son until Janice sought to cut off the relationship in 2008. At that time, Debra turned to the courts to seek continued visitation with her child.

In its ruling today, the court unanimously held that because Debra would be considered a parent under Vermont law, where the couple entered into a civil union, she should be considered a parent under New York Law as well.

However, a majority of the court declined to apply the “de facto parenting doctrine,” under which many other states have protected the best interest of children by affirmatively recognizing as “parents” adults who, while not biological or adoptive parents, have played a parental role in their child’s life. Nevertheless, the court today invited the legislature to take up the issue of recognizing de facto parents in New York.

“This is an important decision for families who have civil unions and allows greater protections for them,” Lieberman said. “But no matter what their relationship status is, same-sex couples who have or are contemplating having children should speak with a family law attorney about second-parent adoption. While today’s decision is a good step in the right direction, all families need to do everything they can to protect themselves under the law.”

The brief filed with the state’s highest court was written by Matthew Faiella, Galen Sherwin and Arthur Eisenberg at the NYCLU and Rose Saxe at the American Civil Liberties Union Foundation LGBT Project on behalf of the NYCLU, ACLU and New York City LGBT Community Center.

To read the full decision or the NYCLU’s amicus brief, visit:

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