A lesbian couple who wanted to cement the custody of their 1-year-old son with an adoption were denied by a Brooklyn judge who cited the state’s marriage equality law.
The baby’s non-biological mother – who is legally married to her partner and whose name appears on the child’s birth certificate – asked to also adopt him so the couple would be protected in a case of separation or a medical emergency in a state that doesn’t recognize same-sex marriage.
But in a first of its kind decision, Brooklyn Surrogate Judge Margarita Lopez Torres ruled that a redundant adoption is neither necessary nor available ” and that no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship. ”
The women, identified in court papers as A.C. and M.M. got hitched in Connecticut in 2011, with the marriage affirmed in New York. M.M. gave birth to Sebastian last year and the couple sought the extra protection, as many same sex parents do.
Their lawyer, Michael DiMauro, said they expected the judge to rubber stamp the uncontested request and it was actually quite shocking ” when Lopez Torres invited them to her chambers earlier this month to explain her reasoning in person.
While this should be considered a tremendous victory to same sex couples, it leaves a lot of trepidation, ” he said of the decision.
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The couple is contemplating whether to appeal, he said.
In the past, Lopez Torres wrote, she would have granted the petition without any hesitation whatsoever. ”
But in light of New York’s legalization of same-sex marriage, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship, ” she explained.
She noted that children born to married couples are considered legally theirs and pointed to the Supreme Court decision last year ordering the federal government to recognize gay marriage.
The judge’s heart is absolutely in the right place, ” said Naomi Sunshine, attorney at Outten & Golden LLP. As a lesbian mom and a LGBT rights activist, I’m very moved by that. But as a practical matter, not everyone recognizes [the rights of same sex parents]. ”
Michele Kahn, who chairs the LGBT Committee at the state’s bar association, argued that until same sex marriage is the law across the land, the decision might leave gay couples in legal limbo.
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