Addressing matters of child custody is never an easy thing. For New York same-sex families, the issue can be even more complicated. A recent case illustrates the issues that same-sex parents face when addressing family law matters. As the courts continue to wrestle with issues related to same-sex marriage and child custody, parents across the nation continue to encounter difficulty in securing parental rights.
In this case, two women chose adoption as a way of adding to their family. They did so before same-sex marriage was legalized, which meant that only one of the women was able to be listed on their son's adoption certificate. Years later, the couple conceived a child through the process of in vitro fertilization. At the time their second son was born, the state where the couple resided did not allow two women to be listed as parents on the boy's birth certificate. The same woman who legally adopted their first son also gave birth to their second child, and is listed as his mother.
When their relationship deteriorated, the couple began to struggle with child custody issues. Because only one of the women is listed on both the birth and adoption certificates, she alone had legal rights in connection with the children. That left the other mother completely shut out, which led to a period of 13 months in which she was unable to see her children.
When the matter went to court, a judge ruled that he was unauthorized to add the second mother's name to a birth certificate. He went on to state that because two women cannot conceive a child together, then an issue exists where the child does have a biological father, even if he was a sperm donor. The second mother was awarded visitation with the boys, but she will not be able to receive full parental rights unless an appellate court rules in her favor.
This case serves as a warning to same-sex parents in New York or elsewhere who are considering adoption or in vitro fertilization as pathways to an expanded family. In areas where state law does not support the inclusion of both parents on the child's birth or adoption certificate, these types of family law matters will continue to arise. That is especially pressing for couples who begin their family in one state before moving and settling down in another.
Source: sunherald.com, "She was denied custody because 2 women can't make a child, judge says", Anita Lee, Nov. 2, 2016