Divorce Lawyers Directory Blog

The New York Court of Appeals has recently ruled on a case which will most likely have far-reaching implications over other similar family law cases regarding child custody among same sex couples. In Debra H. v. Janice R., the court ruled that Debra, the non-biological, non-adoptive parent in a same-sex couple should be recognized as a parent and granted her the right to seek custody or visitation of their child.

While the ruling goes against a prior 1991 decision, it does not undermine the previous ruling. In that case, the Court of Appeals ruled that the lesbian partner of the natural birth mother has no visitation rights despite demonstrating a parental relationship with the child. Although the facts in the current case closely resemble those of the original, there was one important distinction which enabled the Court to rule against the precedent set in 1991.

Prior to the birth of the child, the same sex couple entered into a civil union in Vermont. As a result, Vermont law recognizes both women as parents. Therefore, the non-biological parent did not need to file formal adoption papers to be considered a parent under law.

The New York Court of Appeals decided that under the principle of comity, which recognizes the laws of a sister state, the couple's civil union in Vermont qualified both women as a "parent" under New York's Domestic Relation Law. By giving comity to the Vermont law, the Court was able to avoid undermining a prior precedent while simultaneously providing the partner of the biological mother recourse to continue her parental relationship with her child.

It is important to note that this decision does not grant the non-biological parent custody or visitation rights. It simply grants her the ability to fight for that right in court.