Debra H. v. Janice R. – An affirmation of Second Parent Adoption

May 4, 2010

By Anthony M. Brown, Esq.

The New York Court of Appeals issued their ruling today on what had been considered to be a potentially landmark case, Debra H. v. Janice R.  In their ruling, the court allowed the plaintiff, Debra H., access to her non-biological child with whom she had been denied visitation from the biological mother, Janice R.  That sounds great, right?  Wrong.

In doing so, the court allowed to stand the precedent  notion that a biological parent can deny access of a mutually planned on, conceived and raised child, or children, to a non-biological parent.  In essence, the court relied solely on the fact that the parties had entered into a Vermont Civil Union to establish parental rights between Debra H. and her child.  That in itself has many repercussions for the dissolution of Vermont Civil Unions in New York, as well as other parents who have not undergone a Second Parent Adoption, which was specifically authorized by this very same court in 1995. 

The court today said that without a Vermont Civil Union in this particular case, there would be no relief for a non-biological parent seeking visitation with a child who may be seriously hurt by the denial of access to both parents.  Only a Second Parent Adoption would secure those rights.  The court steered clear of addressing the best interests of children in such a precarious position, which seems disingenuous as the best interests of the child have always been the touchstone of family law in New York State.

This decision opens the door to challenges based on marital status, but may require couples to have lived in a jurisdiction that honors their marriage before honoring it here in New York.

The reality of this decision is that the court has punted the issue of having family law catch up to modern families to the Legislature.  If past is prologue, we have an uphill battle ahead of us and the only lesson to take from this decision is to do everything you can to secure your rights to any children born into a nontraditional family through Second Parent Adoption after a child is born, and through marriage or civil union prior to the birth of any children.  That said, the court’s decision fails to protect male litigants as their parental rights cannot be effectively established through marital status.