The recent progress in the legal rights of same sex couples isn’t a direct and inevitable path to equality as evidenced in New York after Brooklyn’s Surrogate’s Court judge, Margarita López Torres, a long-time proponent of LGBTQ rights, ruled that the same assumption of parentage held by heterosexual married couples now translates to same sex couples in New York.

New York State law states that a child born to a married couple is presumed to be the legal child of both parents, even if conceived by artificial insemination. Absent clear and convincing evidence to the contrary, such as a paternity test, heterosexual couples may rely on the fact that both spouses’ names appear on the child’s birth certificate to establish legal parental rights, both within and outside of New York or the United States. However, in states or countries which fail to recognize a same sex couple’s marriage, the only way for the non-biological parent to establish parental rights or ensure obligations as a parent is through an adoption. An Adoption Order is a direct judgment from a judge indicating a parental relationship has been established, which is entitled to full faith and credit by other states, and, if the country signed an international treaty, by other countries as well. A parental relationship which results from a marriage to the biological parent is not “portable” from state to state and from country to country. Marriage is a status-driven concept. If the state or country fails to recognize your marriage, then they fail to recognize any other relationship which flows from that marital status.

On January 6, 2014, a same sex married couple whose names were both on their child’s birth certificate appeared in front of Judge López Torres in order to be granted a second parent adoption for the non-biological parent. They were shocked when their petition was denied because the judge ruled that she was already legally the child’s parent under New York State law.

In an interview with James McKinley, Jr. of the New York Times, Judge López Torres stated that granting the adoption would mean that “a same-sex marriage remains somehow insufficient to establish a parent-child relationship.”

However well-intentioned the Court was in reaching its decision, the Court lacks awareness of the critical issues facing LGBTQ families as they navigate the laws of discrimination in states as close as Pennsylvania, states and hostile countries in which New York families travel, states and hostile countries in which grandparents and other loved ones live. These external forces, coupled with the very real risk of a biological parent moving to a non-recognition state with the intention of using those status-driven and discriminatory laws to bar a parent from seeing a child, create unnecessary and impermissible stress and anxiety on LGBTQ families. A best interest of the child approach would lead to an entirely different result than was taken here.

It remains to be seen whether other family court judges and surrogates across the state concur with Judge Lopez Torres or whether each will recognize that treating LGBTQ married couples the same as heterosexual married couples in this instance leads to inequality and insufficiency of the worst kind for LGBTQ families as they leave New York’s borders.

The couple hasn’t yet decided if they will appeal the case. You can read the complete NY Times article here.


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