Tuesday, May 4, 2010

Court Expands Rights of Gay Parents - City Room Blog - NYTimes.com

Court Expands Rights of Gay Parents - City Room Blog - NYTimes.comCourt Expands Rights of Gay Parents

ALBANY — New York State’s highest court ruled in two cases Tuesday that nonbiological parents involved in same-sex relationships have rights similar to those of biological parents.

But the court limited its rulings, ultimately leaving it up to the State Legislature to decide whether to amend state law to grant nonbiological parents full custody rights.

In one case, the court, the Court of Appeals, found that a woman is entitled to seek child support from her former partner, who is not the biological mother of a child the couple raised together before they separated.

The ruling was 4 to 3.

In the second case, which experts said was the more significant of the two, the court ruled that a woman can seek visitation rights from her former partner because she is a legal parent, even though she is not the child’s biological mother. The two women entered into a civil union in Vermont.

“In many ways this is a real breakthrough in New York,” said Susan Sommer, who argued the case before the Court of Appeals and is senior counsel and director of constitutional litigation for Lambda Legal, a legal advocacy group.

The ruling was 7 to 0 that the nonbiological parent, referred to in court documents as Debra H., had parental rights. The court recognized the woman’s legal status as a parent because her relationship with the biological mother was legally established through the civil union.

But some legal experts said they were dismayed that the court did not go a step further and establish the parental rights of nonbiological parents who are not in legally recognized relationships.

“It is a narrow victory that will help the children of couples who marry or enter civil unions, but it will not help the children of parents who don’t,” said Nancy Polikoff, a law professor at American University.

The rulings reflect the expanding affirmation by the Court of Appeals of rights for gays and lesbians. The court has generally ruled that short of same-sex marriage — which it has said should be approved by the State Legislature — gay and lesbian couples can enjoy a broad range of legal protections.

While same-sex marriages are not legal in New York, the state does recognize same-sex unions performed in other states. The Court of Appeals has so far rejected legal challenges to out-of-state gay unions.

In November, the court decided in separate cases that New York State and Westchester County had both acted lawfully when they extended benefits to same-sex couples. In the state case, the court rejected a challenge to a state policy that extended health benefits to same-sex partners of state employees who were married in states where such unions are legal.

In the Westchester County case, the court said the county could recognize same-sex marriages performed in other states.

In February, the United States Supreme Court refused to hear a case in which a biological mother was seeking to strip her former partner of parental rights. A family court in California had ruled that the former partner should be considered a full parent.

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