NY appeals court denies parental rights to lesbian
By Samuel Maull
Associated Press Writer /
April 10, 2009
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, 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
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
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. The
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.
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