Foreign Civil Unions: Where Do We Stand Now?

By Carol Most

The matter of Debra H and Janice R., 14 NY3d 576, decided by the Court of Appeals on May 4,2010, has dramatically changed the laws on parenthood as we know them in New York State.

The Court of Appeal's prior seminal decision on the subject, Alison D. v. Virginia M 77 NY2d 661(1991), had held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of the child's fit biological parent. In Alison D., the Court of Appeals held that it is the child's mother and father who have the right to the care and custody of their child. To allow a third party visitation would impair a parent's rights to custody and control.

Thus, the petitioner, Allison D. had no standing to petition the courts for visitation, as such a right would displace that of a parent to decide what is in their child's best interest.

Debra Hand Janice R, in effect, created parentage for a same sex partner of the biological parent for the child born by artificial insemination during the parties' civil union. The key to the court's decision was the status invoked by the couple's Vermont civil union. But in all other respects, the State of New York has, thus far, refused to recognize the legal existence of civil unions entered into in other states or countries, creating almost insurmountable obstacles for those who are so joined.

Should the holding in Debra H and Janice R. be extended further, to create a sort of recognition of other aspects of civil unions, allowing them, for example, to be dissolved in New York?

Evolution of the Law of Parentage in New York

To fully understand, the holding in Debra H and Janice R., it is helpful to review the laws that recognize established parental rights in New York.

The Family Court Act (FCA) § 417 establishes the presumption of legitimacy for a child born prior or subsequent to a marriage. New York has always had a presumption that a child born< during a marriage was the child of both parties to the marriage. Historically, when there was a dispute concerning custody, the cOlllis could award it to either natural parent. To this end, Domestic Relations Law (DRL) §70 (a) provides: "Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return therefore, the collli, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prime facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and malce award accordingly."

With the advent of advanced reproductive methods, the legislature found the need to expand the definition of the word "parent" for child custody purposes. DRL §73 provides: "Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes."

The courts further refined the law, as societal changes expanded the idea of what constitutes a family. In Matter of Jacob, 86 NYS2d 651 (199.~). . ,tl}e Couli of Appeals construed DRL ~ 1 Hl (which discusses who may adopt) to permit adoption by an unmarried partner, whether heterosexual or homosexual, so that he or she could become a child's second parent by way of adoption.

In the Debra Ii and Janice R. decision the court points to Alison D. in conjunction with Matter of Jacob as previously providing a "bright line" IUle that promoted certainty in domestic breakups. The predictability the court referred to stemmed fi'om the State's failure to allow the creation of parentage absent an adoption. This IUle of law preserved the right of parents to control participation by third parties in the lives of their children. The Debra Ii decision, quoting from the landmark United States Supreme Court matter of Troxel v. Grandville, 530, U.S. 57 (2000), stated: "Courts must be sensible of 'the traditional presumption that a fit parent will act in the best interest of his or her child' and protect the 'parents fundamental constitutional right to make decisions concerning the rearing of that child".

But although the Debra Ii and Janice R. decision reaffirmed the holding of Alison D" the court went on to address a new twist in the situation: the effect of the Vermont Civil Union.

On Parentage Issue, Court Finds a Work-Around In keeping with Alison D., the Debra Ii and Janice R. court held that the legislature is the branch that must make any changes needed to create an additional category of "parent" outside of the definition in DRL §70. However, since Debra Ii and Janice R. had entered into a civil union in Vermont before the child's bilih, the comi did find that it had to address two issues: whether Debra H. was a parent pursuant to Vermont Law; and, in the event she was, whether as a matter of comity, she had standing to seek visitation and custody in New York

Finding that Vermont's Civil Union statute provides parties to a Civil Union all of the same rights, benefits and responsibilities granted to a spouse in a marriage, and relying on the VelIDont case law holding that a child born of artificial insemination to one partner of a civil union is deemed the other partner's child, the Debra Ii and Janice R. court resolved the issue for New York: Despite the unceliainty of the legal ramifications of a VelIDont civil union with regard to parentage, the comi concluded that there was no conflict with New York law that should prevent the comi from recognizing Debra H. 's parentage, in comity with VellDont's law. Thus, New York would recognize parentage created by a civil union in Vermont, and Debra H. had standing in New York to seek custody and visitation in a best interest hearing.

Civil Union vs Same-Sex Marriage

So, in accordance with Debra Ii and Janice R., a child born during a civil union has two parents in the eyes of the State of New York - the partners in the civil union. Similarly, because the State of New York now recognizes out-of-state same-sex marriages, a child born during the marriage of a same-sex couple legally married in another state or country has two parents in the eyes of the State of New York - the spouses.

Other aspects of the law in New York are not as egalitarian when same-sex partners enter into a civil union rather than a marriage. For example, the essential predicate for New York's dissolution of a same-sex out of state marriage has been the existence of a valid marriage. As New York does not recognize a civil union as a marriage, problems can ensue for New York residents, legally joined under Vermont law, who want to go their separate ways. In the matter of B.S. v. F.B., 25 Misc.3d 520 (2009), the Hon. Sam D. Walker of Supreme Court, Westchester County, held that while the civil union of same sex parties was valid under Vermont law when 2 properly contracted, it was not a marriage that required a divorce. Opining that since New York has not created a method by which same sex partners can legalize their relationship, in the absence of such a rule the court had no precedent or authority to address the plaintiff s application to dissolve the civil union. The B.S. v. F.B. court found that it could not treat the civil union as a marriage absent judicial precedent or legislative action, leaving the subject couple with no legal way out of their union.

Conclusion

Debra H and Janice R. decision effectively expands the meaning of the term "parent" to include individuals who are not legal parents or blood relatives of a child but who are joined in a civil union with the biological parent at the time of birth. But the other thing we are left with following Debra H and Janice R. is a lot of questions. How can the State of New York recognize parentage obtained through a civil union and yet not recognize the validity of the civil union itself? Is there any way for a party to dissolve a civil union in New York and, if so, what is it? If not, what obligation does our legislature have to create a method for dissolution of valid foreign civil unions? And, ultimately, doesn't our legislature have a duty to address the meaning of the word "parent" as it applies in New York, rather than rely on judicial revamping?