Child Custody and Sexual Orientation

Although Same-Sex partnerships have finally gained approval by the New York State Legislature, unique family law and child custody issues still arise in this context.  The first sentence of Section 110 of the Domestic Relations Law provides that “An adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.” Section 117 of the Domestic Relations Law severs all legal ties between adoptive children and their birth families, and gives them the same legal status, with regard to their adoptive families, as birth children.   This much is relatively straightforward. Homosexual couples can adopt children together. And when they do, they are entitled to the same rights as heterosexual couples.

But family law issues between same sex couples and children can easily become more complicated. One famous New York case is exemplary. In Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, (1991), a same-sex couple decided to have a child. The child was conceived (through artificial insemination) before, but born after the couple’s Vermont marriage. The couple cared for the child as married parents for two and a half years, sharing childcare expenses, including the mortgage on the family’s house, until the relationship ended. When the couple separated, the birth mother kept physical custody of the child, and eventually ended contact with the non-birth parent. The non-birth parent petitioned the court for shared custody. Despite the fact that both parties shared the child’s expenses, and that the couple intended to treat the couple as their child, the court held that the non-birth mother did not have standing to petition for custody.

The court reached this conclusion because the Domestic Relations Law only gives parents, siblings, and grandparents standing to petition for the custody of a child. In New York, individuals do not become parents simply by marriage. In all but extraordinary circumstances, individuals must adopt their spouse’s children before they will have standing to petition the court for custody of those children. As recently as 2010, the Court of Appeals has reaffirmed its position that only the legislature can extend the the categories of people that can petition for custody. (See Debra H. v. Janice R., 14 N.Y.3d 576.)

Courts once viewed same-sex conduct as a reason to deny custody to parents. If a different-sex couple divorced, and one partner subsequently entered into a same-sex relationship, courts would tend to award custody to the other partner. (Although courts always considered a variety of factors, this factor weighed heavily toward denying custody.) However, since courts began to recognize same-sex marriages in other states, and especially now that same-sex marriage has been legalized in New York, the same-sex conduct of an individual only becomes relevant to a custody determination in situations in which different-sex conduct would be relevant – that is, where a parent’s sexual conduct threatens the well-being of a child, regardless of the sex of the partner.

Individuals in same-sex relationships – or different-sex relationships, for that matter – that want to secure custodial rights to a child should seriously consider adoption. Nevertheless, there are exceptional circumstances in which non-parents can petition for custodial rights to a child.

Long Island Divorce Attorneys

If you have any questions regarding the effect of sexual orientation on custody determinations, and would like to set up a free consultation with an attorney, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 today!