The New York Post headline screams on October 1, 2012: “Judge rejects birth mother and gives custody to partner” and the article claims that it is the first such New York State case involving a same sex couple. Is this news? I think so, but perhaps not for the reason you might think.

I don’t know the same sex couple involved in this case and do not know the facts. So please don’t think I am commenting on this particular case. But why should it be news at all, when two legal parents of a child sue for custody and the non-biological parent is granted custody over the biological parent? Each are parents in the eyes of New York State. Biology should not trump non-biological parental rights when a judge is forced to make a solomonic decision about a child because the parents aren’t able to work out their own parenting plan.

In this situation, the child has two legal parents, and even though the Post describes the other parent as “the birth mother’s partner”, she is first and foremost a legal parent to her daughter. The couple completed a second parent adoption. The partner’s relationship to her daughter is no different from any other legal parent who gives birth to a child, adopts a child, or is married to a woman who gives birth to a child. Each parent has full rights and responsibilities to the child, regardless of genetics. This New York State judge got it right when, after reviewing the facts and the situation before her, ruled : “only the best interests of the child are paramount”.

So why do I think this is news? Second parent adoptions have been available to same sex couples in New York State for almost 20 years. And if it is true that this is the first reported case which grants custody to the non-biological mother, do we really think that no same sex parents have split up in the last 20 years? Of course not, and that is why I find this case so interesting as a queer family lawyer. Why are there no reported cases where a judge had to choose between two women claiming full custodial rights to their child so that the other parent has none? Is it because lesbians are working out their parenting plans in non-litigious ways, such as through counseling, mediation, collaborative law? Is it because, as a rule, they have less income than their straight parent counterparts and therefore less ability to hire attorneys to “duke it out” in court? I imagine it is a little of both, but that is the real story, in my mind, the Post should be pursuing.


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