New York High Court Rules in Lambda Legal Case: Vermont Civil Union Establishes Parental Rights of Non-Biological Mother

(New York, May 4, 2010) — In a decision today, all seven judges on the New York State Court of Appeals ruled that a non-biological mother, represented by Lambda Legal, is a legal parent and entitled to seek custody and visitation based on a Vermont civil union that she and her former partner entered into prior to the birth of their son.

"This is a terrific outcome for our client and her six-and-a-half-year-old son. New York has recognized the legal parent-child relationship established after this couple entered into a civil union in Vermont," said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. "While this is a great result for Debra and her son, unfortunately a majority of the Court did not go further and overrule its 1991 Alison D. That decision allowed only biological or adoptive parents to seek custody and visitation. Today's decision only added one new category of protection for families. Children whose parents conceive them using an anonymous donor but haven’t traveled out of state to enter into a civil union or marriage should be protected as well. The legislature should follow the lead taken by many other states and pass legislation clarifying children’s legal relationships with both their intended parents."

The Court of Appeals ruled that "New York will recognize parentage created by a civil union in Vermont. Our determination that Debra H. is M.R.'s parent allows her to seek visitation and custody at a best-interest hearing."

With this victory in New York's highest court, Debra H. now is able to proceed in the trial court to seek custody and visitation with her son, as well as to provide him with financial support. A trial judge will ultimately rule on what is in the best interest of the child.

Today, the Court of Appeals also decided another case, H.M. v. E.T., involving a same-sex couple who conceived a child with an anonymous donor, but in which the non-biologically related partner now argues that she is not the child's parent and should not be required to provide child support. The high court ruled that Family Court has jurisdiction to hear the case and determine whether the woman is the child's parent.

Background on Debra H. v. Janice R.

Lambda Legal represents Debra H. in her effort to continue to parent the son she and her former civil union partner, Janice R., planned together. The couple agreed they would raise a family together in a two-parent household and conceived their son using in vitro fertilization. Janice promised that Debra would formally adopt their child, and they met with an adoption lawyer prior to their son’s birth. In 2003, before he was born, they entered into a civil union in Vermont, which at that time was the most legally significant relationship available to same-sex couples under U.S. law. Debra was by Janice's side throughout labor and delivery and cut their son’s umbilical cord; her last name was included in their son's name on his birth certificate. In the years that followed Debra gave him the day and night love, nurture and care of a mother. When it came time for the second-parent adoption, Janice, who is a lawyer, advised Debra "as a lawyer" that they didn't need to get the courts involved and that Debra would always be the boy’s parent. When the couple's relationship ended in 2006, Debra continued actively to parent her son, who moved with Janice into an apartment only a block away. Debra and her son were together daily, and she often put him to bed.

Early in May of 2008, when the child was four-and-a-half-years-old, Janice abruptly refused Debra any further contact with him. Debra immediately filed for emergency joint custody and restoration of parental access. The trial court ordered interim regular ongoing visitation and allowed Debra’s petition to proceed to trial. When Janice appealed, Lambda Legal entered the case in early 2009 on Debra's behalf. The case was argued in the Appellate Division, First Department in March 2009, and on April 9, 2009, the trial court decision was reversed. The New York Court of Appeals then accepted the case for appeal and heard argument on February 17, 2010. Many prominent legal and child welfare experts filed friend-of-the-court briefs on Debra’s side, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, child advocates and 45 family law professors on the faculty of every law school in New York State.

The child's court-appointed attorney also asked the court to give Debra the opportunity to protect their parent-child relationship.

Susan Sommer, Director of Constitutional Litigation at Lambda Legal, argued the appeal on behalf of Debra. She is joined by co-counsel Bonnie Rabin and Orrit Hershkovitz of Cohen, Hennessey, Bienstock & Rabin, P.C. and by Lambda Legal affiliated attorney Jeremy Sanders. Debra's son is represented by Anthony Parisi, III and counsel Jennifer Colyer of Fried, Frank, Harris, Shriver & Jacobson LLP, who argued the case in the Court of Appeals.

The case is Debra H. v. Janice R.

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