N.Y. Family Court Judge Says Same-Sex Spouse Needn't Be Certified to Adopt Partner's Child

Leonard Link: N.Y. Family Court Judge Says Same-Sex Spouse Needn't Be Certified to Adopt Partner's Child

A simple consent would do....

A Rochester, New York, Family Court Judge has ruled that there was no need for the same-sex spouse of a woman due to give birth in March to seek pre-certification to adopt her partner’s child. Judge Joan S. Kohout concluded in her January 6 ruling that because the couple’s Canadian marriage is recognized under New York law, the spouse could be treated exactly the same as the husband of a woman who became pregnant through donor insemination, in which case neither pre-certification nor an adoption proceeding would be necessary to establish a parental relationship with the child. Matter of Donna S., 2009 N.Y. Slip Op. 29009 (Fam. Ct., Monroe County, AC-14386-08).

However, since all the paperwork was in order and there was a positive home study report on file, Judge Kohout granted the petition for pre-certification, so the petitioner is eligible to adopt a child until the expiration of the petition in May 2010.

According to Judge Kohout’s opinion, Donna R.S. and Lisa P. were married on July 4, 2007, in Niagara-on-the-Lake, Ontario, Canada. Lisa has become pregnant through donor insemination, and is due to give birth in March. Donna initiated the process of being approved as an adoptive parent, with the intention of having a second-parent adoption when the child is born. As part of that process, she submitted to a home study by a social worker, who produced a positive report, and then she submitted her petition to the court to be "pre-certified" as an adoptive parent so the adoption procedure could be undertaken quickly after the child is born.

The petition does not specify that Donna was seeking to adopt any particular child, but merely to be certified as qualified in general to be an adoptive parent, but the home study made clear to the court that her intention was to adopt her same-sex spouse’s child.

Judge Kohout considered the pre-certification process to be unnecessary. Pointing out that the Appellate Division’s ruling last year in Martinez v. County of Monroe means that "the marriage of same sex couples legally married in other jurisdictions must be recognized by New York," and mentioning as well that Governor David Paterson had directed New York state agencies to "apply statutes and regulations in a gender neutral manner to same sex parties validly married in another jurisdiction," Judge Kohout saw no reason to treat Donna any differently from the husband of a woman who has become pregnant through donor insemination.

In such situations, no adoption proceeding is necessary. All that is required is for the parties to execute a consent form, indicating their agreement that the birth mother’s spouse will be the legal parent of the child, and the spouse’s parental status would be established.

Along the way to this result, Kohout speculated on an alternative approach to the same end: "Since Ms. S. is the spouse of Ms. P., she will at the very least be considered a step-parent to Ms. P.’s child after the child’s birth. Step-parents are not required to be pre-certified as qualified adoptive parents for the purpose of adopting their spouse’s child." However, step-parents would have to fulfill a one year waiting period to adopt, or get approval to waive the waiting period from the court.

Ultimately, Kohout seemed to feel that the better approach would be that provided by the statute governing donor insemination, as described above, pointing out that "a child born to a married woman by artificial insemination is deemed the legal child of the husband if both spouses execute a consent to that effect. Given the holding in Martinez, it would seem that by the simple execution of a consent, Ms. S. could become the baby’s legal parent without the necessity of an adoption."