Roz Quarto answers your legal questions about the rights of non-biological mothers.
by Roslyn A. Quarto
October 5, 2010
Dear Roz:

It looks like my partner and I are breaking up. We lived together for 10 years, were married in Canada in 2006 and have a 15-month-old child. I am the non-biological mother and I haven’t yet adopted our daughter. What are my rights?


Dear Cheryl:

A lot has been happening lately, throughout the country and particularly in the tri-state area, regarding same-sex marriage. Both the Connecticut and California Supreme Courts are expected to rule shortly on whether their state constitutions should mandate same-sex marriages. In New Jersey, a commission set up by the Legislature when they created the Civil Union Law just issued their first report, finding in essence that gays and lesbians are still experiencing discrimination by virtue of their civil unions, and that such unions may not be an acceptable alternative to same-sex marriage.

The law in New York concerning the recognition of Canadian marriages is in a state of flux right now. Although New York State’s highest court ruled in 2007 that the New York State Constitution does not compel the recognition of same-sex marriages conducted in New York, an appellate court in upstate New York ruled earlier this year that New York must recognize Canadian same-sex marriages. That case is currently being appealed, so we won’t know more about its impact for some time. Last month, a judge in New York county, citing that upstate New York case, held that a non-biological mother married in Canada had the right to seek a divorce in New York.  That same judge also held for the first time that a non-biological mother who had not adopted the child still had a right to a custody hearing to determine whether it was in the best interests of a child born during that marriage for her to have parental rights bestowed upon her. Needless to say, the potential impact of this case is huge, but since it is also going to be appealed, we won’t know for quite a while if the decision will stand.

You should definitely seek legal counsel, sooner rather than later, to determine if you should sue your ex-partner for divorce and seek custody rights. I hope your situation helps others to realize that they need to take advantage of the opportunities already available to protect themselves and their children. New York has permitted second-parent adoptions for years, and it is not difficult to have all the paperwork prepared and ready to be filed within a couple of weeks after the birth of your child.

Email questions to rquarto@qdlegal.com or call 212-557-0200

*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.

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