Late last week, a judge in Brooklyn ruled that a woman was not allowed to legally adopt her wife's biological child. The Honorable Margarita Lopez Torres cited the legalization of same sex marriages in the empire state for her decision, saying that the adoption and custody issue at hand "is neither necessary nor available" because the woman in question is part of a legal union. Under New York State law, same sex married couples are given the same rights as straight couples, which means the woman who was looking to adopt the child is already considered to be a legal guardian.
While this controversial ruling had some gay rights activists rejoicing, it left other members of the community concerned. The anonymous couple's attorney, Michael DiMauro, was quoted as saying, "While this should be considered a tremendous victory to same sex couples, it leaves a lot of trepidation". It appears that the couple sought legal adoption so both of their parental rights would be recognized outside of New York State. The non-biological spouse might not have the same rights as her wife in another state when it comes to raising the child, such as a say in medical care and treatment options. Additionally, if the couple were to move to, and divorce in, a state that did not recognize same sex marriage, then the non-biological mother may not be considered the child's parent under the laws of that state.
Judge Torres claimed that the bid for adoption would invalidate the preexisting state law that recognizes same sex marriages. She did recognize that "true marriage equality remains yet to be attained" because if it had been, the couple would not have petitioned for adoption.
As inferred by the judge's decision, same sex couples still have many uphill battles ahead of them regardless of the fact that New York State passed legislation making same sex marriages legal. Whether these couples are considering marriage, have decided to divorce, or have a pressing family law matter, it is important that they consult with an attorney who is sensitive to their specific and sometimes complicated needs. The law firm of Brian D. Perskin & Associates has represented same sex couples in matrimonial courtrooms in all five boroughs, as well worked to draft solid prenuptial agreements. Let their background in matrimonial and family law give you an advantage in your case and call (718) 875-7584 to schedule your consultation today!
*Couple pictured is not the same as anonymous couple from court case.