Rainbow bLAWg

When a lesbian couple living in New York decided to have a child, they went through all legal steps to protect their family. They got legally married before the child was conceived, and when the child was born they made sure both of their names were on the child’s birth certificate. They are also residents of New York State, which recognizes the parental rights of the non biological parent of a child conceived through artificial insemination.

Even though they were legally married months before the child was born, the non-bio mom started the adoption process. She submitted all the paperwork, including a criminal background check. financial documents and had a social worker inspect their household.

The case went before Brooklyn Surrogate Court Judge Margarita López Torres on January 6th, who denied their request saying it was redundant. A parent cannot adopt their own child. This is the first time we’ve heard of a Judge treating gay and lesbian parents who have a child after their marriage the same as they would treat a heterosexual couple who have a child after their marriage.

“Beware if you should go out of state,” warned their attorney, Joseph Milizio. “If the child and the biological parent were injured and could not make health-care decisions, then the only person who could make decisions would be the biological parent,” he said.

Judge Torres acknowledged the “tectonic shifts occurring in the geography of our culture’s definition of family,” and concluded that “the relief sought herein by the petitioner is neither necessary nor available.” Regarding health care providers in other states not respecting their relationship, she said that was an issue for the courts in those states to settle. Moreover, she wrote that granting the adoption would mean that “true marriage equality remains yet to be attained” and that “a same-sex marriage remains somehow insufficient to establish a parent-child relationship.”

“I understand why there are all these fears that a lot of couples have — I get that, and it’s more than an unfortunate situation — but I just think the remedy is not to start treating same-sex couples differently,” the judge added.

Carol L. Buell, a lawyer who specializes in same-sex-marriage issues, said an adoption approved by a judge carries more weight in other jurisdictions than does the presumption of parentage based on a marriage or birth certificate. That is especially true in states or countries that do not recognize same-sex marriage.

It was learned that the couple has plans to travel outside the country to visit family in the near future.

If we were their attorney’s and we were worried about them traveling then we would advise them to carry a copy of this judge’s decision. What is the difference and adoption order or a judge’s ruling that they are both legal parents? If they have to fight for their rights, both pieces of paper have equal weight.

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Carrie Stone