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New York: New Parenthood Rules in Favor of Same-sex Couples
(Blogmensgo, gay blog of September 1st, 2016) In a decision of August 30, 2016, the appellate court of the state of New York ruled that legal parenthood does not solely depend on biologic filiation or official adoption of a child. With this ruling, presiding judge Sheila Abdus-Salaam overrode the homophobic parenthood definition that had been in force since 1991 and set new standards for legal child custody after divorce or separation of a married or unmarried couple.
Between 1991 and August 29, 2016, it did not matter for the status of parenthood in the state of New York how much a person was involved in the upbringing of a partners’ children. A person had to be either a biologic or adoptive parent in order to be entitled to care for or visit an ex-partner’s child after a couple’s separation.
This jurisdiction was based on a ruling from 1991 about a lesbian couple.
Pros and cons
Once again, this new ruling from August 30 was in reference to two lesbian couples.
In the first case (Brooke B. vs. Elizabeth C.), one of the two women, who had no actual parental link to her ex-partner’s son, wanted visitation rights for him.
In the other case (Estrellita A. vs. Jennifer L. D.), the biologic mother of a child wanted to ban her ex-partner from seeing the child although the latter one had paid for the child’s support.
Lambda Legal, the organization that had defended Brook B., was very happy about the ruling that will allow the child to see his beloved mother again.
Proponents of the current legal situation agree, however, that these rules may give rise to abuse.
The ruling of August 30, 2016
According to this new ruling, same-sex couples are entitled to the same protection as straight couples because the jurisdiction of 1991 does not fit in with the social reality of 2016.
Judge Abdus-Salaam ruled that the legal framework of the 1991 ruling is “unnecessarily narrow” and does not take into account the primary interests of the child.
Even third persons who come into a child’s life after birth may benefit from a right of custody although the limits for this are very narrow.
In any case, this ruling only grants certain rights to a partner or ex-partner but does not infringe on the status of parenthood of the biologic or adoptive parents.
In the first case (demand of visitation rights), the plaintiff may present her demand again to the first-instance court that will then have to bring in line its initial decision with the ruling of the appellate court.
In the second case (refusal of visitation rights), the appellate court confirmed the first-instance decision considering the non-biologic mother as a parent of the child based on her behavior and devotion.
An appellate court in Maryland had announced a similar ruling just before the one in New York. Both rulings may become examples for other rulings in states nearby, such as in Massachusetts where a ruling on the legal definition of parenthood is expected soon.
On the other hand, differing rulings may be announced in states like Michigan where persons have no parenthood rights at all if they are neither biologic nor adoptive parents.