Court says because woman did not adopt partner’s child, she doesn’t qualify to sue for custody after breakup
NEW YORK — A New York City woman whose lesbian partner gave birth to a son after the couple entered a Vermont civil union has no parental rights after their break up because she never legally adopted the child, a state appeals court has ruled.
The New York Supreme Court’s Appellate Division denied a petition by the woman — identified as "Debra H." — for joint legal and physical custody of the boy, whose umbilical cord she had cut at birth and with whom she lived for almost three years.
The appeals court said Debra H. lacked parental rights even though the boy, now 5, was born a month after the women’s Vermont civil union and two months after they registered as domestic partners in New York City.
In their decision issued Thursday, April 9, the appeals court judges cited a 1991 state Court of Appeals ruling that only "biological and adoptive parents" have the right to seek visitation and custody, "even though that party may have developed a long-standing, loving and nurturing relationship with the child."
The decision reversed a lower court ruling in which a judge ordered a hearing to determine if Debra H.’s emotional and financial support role with the child was tantamount to being a parent.
Bonnie Rabin, a lawyer for Debra H., said she plans to appeal the 5-0 ruling to the state Court of Appeals, New York’s highest tribunal.
She said the child "thinks of Debra as one of his mothers" and regular visits with her would be in his best interests. Susan Sommer, another lawyer for Debra H., said the rule the appeals court applied "ignores the best interests of the child."
Sherri Eisenpress, lawyer for the child’s biological mother — identified as Janice R. — said her client told Debra well before the boy was born she would not let her adopt him, and that she did not want her as a "co-parent."
"They’re saying my client should be forced to let this person, who she doesn’t even like, to let her adopt her child," Eisenpress said.
Eisenpress said state law defines parent, and, "Debra was not a parent. She was not treated like a parent; she was treated like who she was. She was Janice’s short-term girlfriend."
Even in the case of a stepparent in a heterosexual relationship, the stepparent has no rights to a child he or she has not adopted, Eisenpress said.
Rabin said that if a stepparent had petitioned the court for custody and had not adopted the spouse’s biological child, the court might have ruled the same. But she insisted that that Debra is a parent — not a stepparent — and should have the same rights that any heterosexual parent would.
"This was the intended child of these two people," Rabin said. Eisenpress said her client was trying to get pregnant long before she ever met Debra.
Rabin said Debra H. is a marketing consultant in her 50s and Janice R. is a civil lawyer who represents insurance companies and who is in her 40s. They began their relationship in early 2002 and moved in together the next year.
Janice R. gave birth to the boy "M.R." on Dec. 8, 2003.