N.Y. Judge Alarms Gay Parents by Finding Marriage Law Negates Need for Adoption

New York Times, January 29, 2013

by James C. McKinley, Jr.

When Amalia C. and Melissa M. decided to start a family, they went through the well-trodden steps most same-sex couples take in New York City.

They married in 2011 and made sure both of their names were on their son’s birth certificate two years later, taking advantage of a New York State law that a child born to a married couple is presumed to be both of theirs, even if conceived through artificial insemination.

And months before Melissa gave birth to their son, Amalia started the adoption process, submitting to a criminal-background check, assembling years of financial documents and hiring a social worker to prepare a report about their household.

“Everyone we had spoken to,” said Amalia, 35, an engineer, “said the process was pretty clean-cut.”

But then a Brooklyn Surrogate’s Court judge, Margarita López Torres, ruled on Jan. 6 that because New York State had enacted same-sex marriage in 2011 and allowed both women to be listed on the boy’s birth certificate, Amalia was already the child’s parent and could not adopt him.

The ruling sent tremors through the ranks of gay couples and has exposed one of the new legal complexities facing same-sex couples with children.

The fear among same-sex couples is that without adoption papers, their parental rights might be questioned if they travel to other states or abroad. They also worry that the nonbiological parent will lose the rights if the family moves to a different state or the couple divorces.

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