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In re Jacob, 86 N.Y.2d 651 (November 2, 1995).

FAMILY LAW - ADOPTION - UNMARRIED COUPLES

SECOND PARENT ADOPTION WITH UNMARRIED COUPLES, INCLUDING HOMOSEXUAL COUPLES, ARE PERMITTED UNDER NEW YORK DOMESTIC RELATIONS LAW.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

In Jacob, the Court of Appeals considered appeals from two separate Appellate Division cases.

In the first case, unmarried appellants Roseanne M.A. and Stephen T.K. attempted to adopt Roseanne M.A.'s biological son Jacob jointly. At the time of filing the adoption petition, appellants had lived together for three years since Jacob was a year old. Jacob's biological father gave his permission for the adoption; Roseanne M.A. held sole custody of Jacob; Stephen T.K. was employed with a yearly salary of $50,000; and Roseanne M.A. was a student. The Family Court found that "the granting of an adoption in this matter may be beneficial for Jacob". In Jacob, 670 N.Y.S.2d 640 (1994), the Appellate Division nevertheless affirmed a family court dismissal for lack of standing on the basis that Domestic Relations Law § 110 does not authorize adoptions by unmarried couples.

In the second case, appellant G.M. attempted to adopt Dana with the consent of P.I., Dana's biological mother, who was G.M.'s lesbian partner of the past 19 years. P.I. conceived Dana in 1989 through artificial insemination by an anonymous donor after the two women had decided that P.I. would have a child whom they would raise together. G.M. earned $38,000 a year, as a teacher; P.I., $48,000, working at an athletic club. G.M. and P.I. shared parenting duties and arranged their work schedules around Dana's needs. Further, a court-ordered report recommended that G.M. be permitted to adopt, the investigator finding that G.M.'s three grown children all accept Dana as "their baby sister" and that G.M. "provides [Dana] with a family structure in which to grow and flourish." In Dana, 624 N.Y.S.2d 634 (1995), despite rejecting the family court's ruling that G.M. had no standing to adopt Dana under D.R.L. § 110, the Appellate Division affirmed the family court's dismissal of G.M.'s adoption petition on the basis that D.R.L. § 117 would require the automatic termination of P.I.'s relationship upon her adoption by G.M..

ANALYSIS

ISSUES

1. Whether an unmarried couple has standing under N.Y. Dom. Rel. Law § 110 to adopt the female partner's biological child jointly when she has sole custody of the child, the child's biological father consents to the joint adoption, and the unmarried couple has lived together for several years.

2. Whether N.Y. Dom. Rel. Law § 117 automatically terminates the legal relationship between a child and that child's biological mother when the mother's lesbian partner of nineteen years adopts the child, where the child is conceived through anonymous artificial insemination, the mother and her partner have both planned the child's birth and raised the child together, and a court-ordered investigator recommends that the adoption should be allowed.

DISPOSITION

The court reversed the Appellate Division in both cases, ruling that § 110 authorizes both adoptions, and that § 117 does not terminate the legal relationship between child and biological parent in these cases.

CASES CITED

  • Costello v. Geiser, 85 N.Y.2d 103, 109 (N.Y. 1995).
  • In re Seaman, 78 N.Y.2d 451, 461 (N.Y. 1991).
  • Alison D. v. Virginia M., 77 N.Y.2d 651, 656 (N.Y. 1991).
  • Braschi v. Stahl Assocs., 74 N.Y.2d 201, 210 (N.Y. 1989).
  • In re Gregory B., 74 N.Y.2d 77, 91 (N.Y. 1989).
  • In re Best, 66 N.Y.2d 151, 156 (N.Y. 1985).
  • In re Paul P., 63 N.Y.2d 233, 237 (N.Y. 1984).
  • People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 325, 327 (N.Y. 1981).
  • In re Malpica-Orsini, 36 N.Y.2d 568, 571-572 (N.Y. 1975).
  • In re Eaton, 305 N.Y. 162, 165 (N.Y. 1953).
  • Kauffman & Sons v. Miller, 298 N.Y. 38, 44 (N.Y. 1948).
  • Betz v. Horr, 276 N.Y. 83, 87, 88-89 (N.Y. 1937).
  • In re Tammy, 619 N.E.2d 315, 320 (Mass. 1993).

OTHER SOURCES CITED

COMMENTARY

1. N.Y. Dom. Rel. Law § 110 Authorizes an Unmarried Individual to Adopt the Biological Child of His or Her Partner

A. State of the Law Before Jacob

New York courts have acknowledged that adoption was unknown at common law and is solely a creature of statute. See, e.g., Adoption of Robert Paul P., 63 N.Y.2d 233, 237 (N.Y.1984). This has led many courts to note the extreme deference owed to the legislative purpose and narrow language of the adoption statutes. See, id.; Adult Anonymous II, 452 N.Y.S.2d 198, 199 (N.Y. Sup. Ct. 1982); N.Y. Dom. Rel. § 109-117 (McKinney's Supp. 1995). With respect to § 110, this deference has generally not manifested itself in the form of blind adherence to the literal wording of the statutes. Some courts have extended § 110 to cover atypical situations. See, e.g., Adoption of Elizabeth, 509 N.Y.S.2d 746 (N.Y. Fam. Ct. 1986) (upholding adoption of one woman by another where only ten months separated the ages of the two). However, most courts, notably higher courts, have done more than pay lipservice to the concept when treating a case under § 110. See, e.g. Paul P., 63 N.Y.2d at 238 (holding no reasonable interpretation of adoption law could cover appellants who were living together in a homosexual relationship with none of the incidents of a parent-child relationship present). See also Adoption of D.S., 609 N.Y.2d 139 (N.Y. Sur. Ct. 1994) (holding that the wording of a statute compelled a finding that the ability to complete an adoption terminated upon the death of the proposed father). Cf., Baby Boy C., 84 N.Y.2d 91, 99 (N.Y. 1994) (holding that statutory language did not authorize compelling a man to appear for consent hearing under N.Y. Dom. Rel. § 115 even though he had commenced adoption with his wife).

The specific questions raised in Jacob concerning § 110 authorization of (i) second parent adoptions (the adoption of a child by the unmarried partner of the child's biological parent) and/or, (ii) joint unmarried couple adoptions (the joint adoption of a child by a biological parent and his or her unmarried partner), have likewise been the subject of debate among courts and commentators. The first reported New York decision to hold that § 110 does not authorize either type of adoption, was Adoption of Hope, 571 N.Y.S.2d 182 (N.Y. Fam. Ct. 1991). The court held N.Y. Dom. Rel. § 110, the authority for adoption, did not specifically list unmarried couples as being eligible to jointly adopt a child.

Hope did not settle this debate in courts of first instance. See, e.g., Evan, 583 N.Y.S.2d 997, 999 (N.Y. Sur. Ct. 1992) (allowing joint adoption of child by the biological mother and her life partner, noting that although § 110 was "not literally applicable here, the underlying policy....[of determining the best interest of the child] supports the adoption in this case"); Adoption of Caitlin, 622 N.Y.S.2d 835 (N.Y. Fam. Ct. 1994) (allowing second parent adoption because petitioners as unmarried persons were covered by the language of § 110). Commentators have also expressed conflicting views on second parent and joint unmarried couple adoptions. Compare N.Y. Dom. Rel. Law § 110, Scheinkman, Supp. Prac. Commentary, 84 (West Supp. 1995) (noting that although Adoption of Caitlin and Evan both considered primarily the child's best interest, Hope correctly noted that the courts should first consider whether § 110 specifically authorizes adoption by an unmarried couple) with Sonja Lasen, Adoption of Child By Same-Sex Partners, 27 A.L.R. 5th 54, 66 (1995) (discussing the use of the best interest of child analysis in Evan and implying it was, at least with respect to gay or lesbian partners, a summary of New York's law) and Suzanne Bryant, Second Parent Adoption: A Model Brief, 2 Duke J. Gender L. & Pol'y 233, 240 (1995) (noting that with the decision in Evan, "courts in New York began granting second parent adoptions" and implying a best interest of child analysis is used to obtain that result).

A unique procedural aspect of adoptions may explain the confused state of the law on joint and second parent adoptions. Adoption petitions may be unopposed, allowing courts of first instance to make favorable decisions that are not subject to review by appellate courts. Thus, while there are several lower court decisions allowing these types of adoptions, these decisions do not necessarily represent New York's law, because they were effectively unreviewable by the appellate courts.

B. Effect of Jacob on the Law

Although the case may lead to alternative readings, neither the court's § 110 holding nor its reasoning significantly deviate from traditional analysis. The court indicates its intent to construe § 110 narrowly, answering whether an unmarried partner "can become the child's second parent by means of adoption," and implying that the issue of a joint unmarried adoption is not directly at issue. Additionally, the court notes that although one of the adoption petitions being considered was filed jointly, "this procedural route should not preclude Stephen T.K. -- an adult unmarried person -- from adopting [the child]." By referring to the joint filing by an unmarried couple as a procedural aspect, and noting that this procedural shortcoming can be avoided by individual filing, the court implies it is not expanding the meaning of § 110 to allow joint unmarried adoptions. Under the terms of its analysis, the court does not explicitly give § 110 a reading that allows an unmarried couple "together" to adopt another person. Viewed in this light, the court's holding does not significantly deviate from prior § 110 case law.

Further, the court notes that although other sections at issue may be ambiguous, a plain reading of § 110 clearly allows an adult unmarried person to adopt another person. However, the court's analysis does not end here, as a complete discussion of § 110 has traditionally considers more than the letter of the law. See Paul P., 63 N.Y.2d at 238 (holding that unreasonableness of proposed adoption in light of legislative history was an additional consideration for the court).

To augment its claim that the proposed adoptions fall under the letter of the law, the court discusses those adoptions in light of the purpose and history of New York adoption law. First, the court notes that the word, "together," in § 110 should not be taken as "enforcing a policy in favor of marriage." Rather, this word was inserted by the legislature to insure that one spouse cannot adopt without the knowledge and consent of the other. Second, the court discusses the history of amendments to § 110, noting that they "evidence[] a successive expansion of the categories of persons to adopt regardless of their marital status or sexual orientation."

The court also discusses a concept normally at the forefront of adoption proceedings, the concern for the best interest of the child. This concept may be useful in deciding whether a person is a suitable parent after it has been determined that the person is eligible to adopt under § 110; but its utility in determining whether a person is eligible to adopt under § 110 is questionable. See, N.Y. Dom. Rel. Law § 110 Scheinkman, Supp. Prac. Commentary at 84 (West Supp. 1995) (noting that although courts consider the child's best interest in adoption proceedings, it is only after deciding whether § 110 specifically authorizes adoption by that person or persons). Because the court's discussion of best interests is not explicitly within its § 110 analysis, it is uncertain whether the court intended that the best interest test be used as part of § 110 analysis.

C. Unanswered Questions

Although the court has clearly held that an unmarried individual may, under § 110, adopt the biological child of his or her "partner", the court has not indicated if, in the future, it will make a difference whether the petition is filed by that individual or jointly with the biological parent. § 110 would not on its face appear to allow for joint unmarried adoptions, but in footnote two, the court states that the "procedural route" chosen should not defeat the prospective adoptive parent's petition. Perhaps this suggests that the lower courts permit the terms of the petition to be changed in order that the adoption might proceed.

Another question not answered is whether a biological parent must be involved in the adoption. Both Jacob and Dana involved adoption by the biological parent's partner. It remains to be seen whether courts will allow similar adoptions in situations not involving a biological parent.

A more remote question left unanswered by the court concerns the total number of parents which will be allowed to adopt. By speaking of second-parent adoptions and referring often to the benefits of a household with two parents, however, the court may be implying that third- or fourth-parent adoptions might not be allowed.

D. Dissent

The dissent considers many of the same issues as the majority within its § 110 analysis, but reaches the opposite conclusion. First, the dissent argues that a plain reading of the statute does not authorize adoption by the petitioners. "Petitioners' burden, ignored by the Majority, is to identify a source of statutory authorization.... [rather than show] that nothing in the.... language.... precludes their adoption effort." Second, the dissent argues that even if the wording of § 110 is ambiguous, the statute's legislative history "reveal[s] no legislative intent to extend the right and responsibility of adoption to cohabitating unmarried adults." Third, the dissent notes that the majority reading of §110 would conflict with other family law statutes. For instance, the effective granting of legal recognition to the relationship between the unmarried couples is in conflict with N.Y. Dom. Rel. § 11 as an expression of the state's "longstanding public policy refusal to recognize at-will common law relationships as marriages." Finally, the dissent criticizes the majority's use of the "child's best interests" standard, noting that "[b]efore a court can arrive at the ultimate conclusion that an adoption is in the best interest of a child.... it is first obliged to discern whether the particular application is legislatively authorized."

2. N.Y. Dom. Rel. Law § 117 Does Not Terminate Parental Rights in the Case of a Biological Parent Who Both Consents to a Second Parent Adoption and Wishes to Retain Parental Rights.

A. State of Law Before Jacob

The relevant statute reads: "After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as herein stated." N.Y. Dom. Rel. Law § 117(1)(a) (McKinney 1988 & Supp. 1995). Section 117(1)(d) provides an exception when a natural or adoptive parent consents to adoption by a step-parent.

There are few reported New York lower court cases, and no previous appellate cases, which have approached the question of the operation of 117 under facts similar to those of Jacob and Dana. Where § 117 has been considered in a similar context, the lower courts have used several different approaches in declining to apply it. Some of these were employed by the Court of Appeals in Jacob.

In both A.J.J., 438 N.Y.S.2d 444, at 446 (Sur. Ct. 1981) (finding that the natural father, although never married to the mother, could adopt the child without severing the mother's rights) and Evan 583 N.Y.S.2d 997, at 1000 (Sur. Ct.1992) (holding that a mother's unmarried lesbian partner could adopt the child without severing the mother's rights), the court invoked its equitable power under special circumstances to "confer back to the consenting mother joint custodial rights and responsibilities in the child." Id. at 1000. See also Russell G. Donaldson, Annotation, "Natural Parent's Parental Rights as affected by Consent to Child's Adoption by other Natural Parent," 37 A.L.R. 4th 724 (1994) and Sonja Larson, Annotation, "Adoption of Child by Same-Sex Partners," 27 A.L.R. 5th 54(1995). In Hope, 571 N.Y.S.2d 182 (Fam. Ct. 1991) (holding an unmarried partner could not adopt children) the court ended its analysis when it found no statutory authority allowing the mother to retain her rights after such an adoption.

The "best interests of the child" standard has also been used to defeat the operation of § 117. See A.J.J. 438 N.Y.S.2d, at 446, Evan 583 N.Y.S.2d, at 1000. The Court of Appeals used best interest analysis in Sibley v. Sheppard, 54 N.Y.2d 320, 325 (N.Y. 1981)(holding filial grandparents have standing to petition for visitation regardless of the operation of § 117's legal effect on the child's natural parents). The court addressed an arguable "inconsistency in the termination of some rights, but not others, between the adoptive child and the natural family. If such exists, the desire for consistency in the law should not of itself sever the bonds between the child and the natural relatives." Sibley v. Sheppard, 54 N.Y.2d, at 326.

Courts have also "constructively" applied the step-parent exception in § 117(1)(d) in order to nullify the operation of § 117(1)(a). For instance: "The child's best interests are served by permitting the natural father to adopt in the same manner as if the petitioning father were the stepfather of the adoptive child by marriage to the natural mother," A.J.J., 438 N.Y.S.2d, at 446. The Evan court subtly refers to the mother and her female partner as co-parents: "[W]here the adoptive and biological parents are in fact coparents such as the instant case, New York Law does not require a destructive choice between the two parents", 583 N.Y.S.2d at 1000. This "constructive stepparent" exception appears to hinge on an individualized finding that the unmarried second parent petitioning for the adoption is a "de facto" parent. In Dana, 624 N.Y.S.2d 634, 636 (N.Y. App. Div. 1995), the Appellate Division explicitly declined to apply this "stepparent exception" in the case of unmarried persons citing, curiously enough, A.J.J. (applying stepparent exception to unmarried second parent).

Some courts have characterized § 117 as "essentially a succession statute." Robert K. Scranton, 339 N.Y.S.2d 708, 711(N.Y. App. Div. 1973) (holding that grandparents have standing to petition for visitation rights notwithstanding operation of § 117). The Court of Appeals similarly observed that the "bulk of the statute refers to intestacy and succession." Sibley v. Sheppard, 54 N.Y.2d, at 325. This characterization of § 117 minimizes the need to apply its language strictly in second-parent adoption cases.

B. Interpretation of § 117 in Jacob

The court begins its statutory interpretation by reinforcing Court of Appeals precedent calling for adoption statutes to be read literally only to the extent that the interpretation is consistent with the broad legislative purpose inherent in adoption itself, the best interest of the child. See Robert Paul P., 63 N.Y.2d 233 (N.Y. 1984) (denying the adoption of an adult man by his homosexual lover as against the interest of the statute, regardless of its conformity to statutory language), Best, 66 N.Y.2d 151 (N.Y. 1985)(declining to construe the adoption statute strictly in light of powerful policy considerations regarding inheritance), and Sibley v. Sheppard, 54 N.Y.2d 320 (holding that filial grandparents have standing to petition for visitation, regardless of the operation of § 117's legal effect on the child's natural parents). The court next analyzes the best interests of the children in the current case by looking at both economic and emotional advantages and disadvantages in adoption. The court considers best interest not merely in the narrow sense of the particular facts, but in the broad sense of generally interpreting the statute.

The court characterizes § 117 as primarily a succession statute, reinforcing this interpretation by citing statutory exceptions inconsistent with the broad application of the statute. Notable is a recently enacted statute allowing adoption surrender agreements to include reservations of rights by the natural parents. N.Y. Soc. Serv. Law § 383-c(8)(5)(b)(ii) (McKinney Supp. 1995). Based on this interpretation, the court concludes § 117 does not "require termination in the situation where the biological parent, having consented to the adoption, has agreed to retain parental rights and to raise the child together with the second parent."

In essence the court has held that a "stepparent" exception exists when the custodial parent is: a) the biological parent, b) consents to the adoption, and c) agrees to retain parental rights. This limited exception preserves the overall effect of § 117, "terminating a biological parent's rights in the majority of adoptions between strangers -- where there is a need to prevent unwanted intrusion by the child's former biological relatives to promote the stability of the new adoptive family."

C. Effect on Future Cases

The Court interprets § 117 as primarily a succession statute with a narrow "stepparent" exception limited to those cases where the adoptive parent has the consent of the biological parent. This holding seems to provide a clear rule for future applications of § 117 in unmarried second parent adoption situations.

D. Unanswered Questions

Jacob does not exclude the operation of any of the other judicial approaches previously used by the lower courts to preserve a mother's parental rights. These approaches have typically hinged on court discretion and unusual circumstances. The extent to which lower courts will continue to use these is an open question.

N.Y. Comp. Codes R. & Regs. Tit. 18, § 421.(h)(2)(1992) provides that adoption "[a]pplicants shall not be rejected solely on the basis of homosexuality," resulting in the possible expansion of the stepparent exception to the case of the adoption of a child by two homosexual parents, neither of whom is the child's biological parent.

E. Dissent Response to Majority's Interpretation of § 117

The dissent rejects the characterization of § 117 as merely applying to succession and inheritance, and reads the statute to extinguish parental rights after adoption in all cases, absent narrow statutory exceptions. The dissent is not persuaded that the recent development of the "open adoption" policy in N.Y. Soc. Serv. Law § 383-C(5)(b)(ii) works substantive changes in § 117. The dissent maintains that "Section 117 should not be relegated to, nor was it designed to operate with, case-by-case personal exemptions from universally and equally applied principles of statutory law or precedentially governing authorities." It also attacks the majority's best interest analysis with respect to the prospective adoptive parents: "Their relationships lack permanency and the State has not endowed them with the benefits and enforceable protections that flow from relationships recognized under color of law." The dissent would have affirmed the findings of the Appellate Division because "those appropriate judicial determinations are based on what the Legislature actually enacted and specifically authorized."

3. Possible Constitutional Issues

In dicta, the majority refers to possible constitutional problems that would arise under a stricter interpretation of § 117, noting that the option of marriage is unavailable to the lesbian couple in Dana, and that that could constitute unequal treatment of the child involved. Among other cases, the majority cited Gomez v. Perez, 409 U.S. 535, 538 (1972) (holding that where state denied judicially enforceable right of child support to children born out-of-wedlock, "a state may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally") and Burns v. Miller Constr., 55 N.Y.2d 501, 507-10 (1980) (holding that it violates equal protection for an unacknowledged child born out-of-wedlock to be denied death benefits under workers' compensation law).

The dissent responds by noting that no constitutional issue was raised before the lower courts, that the case did not "squarely and thoroughly" present a constitutional issue, and that the court's failure to observe the presumption of constitutionality accorded to duly enacted legislation betrayed judicial legislation "under the guise of interpretation".

4. Second Parent Adoption in Other Jurisdictions

A number of states allow second parent adoptions for unmarried, heterosexual couples. See, e.g., Adoption of a Child by A.R., 378 A.2d 87 (N.J.Super. Ct. Pro. Div.1977) (allowing unmarried biological father to adopt without terminating rights of legal parent/biological mother). Courts have also granted "stranger adoptions" to openly lesbian and gay individuals. See Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990). It is possible that numerous adoptions have been granted to gays and lesbians without their sexual orientation becoming an issue. Only two states have statutes specifically excluding gays and lesbians from adopting based on their sexual orientation. Fla. Stat. Ann. § 63.042(3) (1994) ( "No person eligible to adopt under this statute may adopt if that person is a homosexual"); N.H. Rev. Stat. Ann. § 170-B:4 (1994) ("[A]ny individual not a minor and not a homosexual may adopt . . . .").

State courts have addressed the topic of second parent adoptions by homosexuals. Compare Adoption of Two Children by H.N.R., 1995 N.J. Super. Lexis 516 (Oct. 27, 1995) with Angel Lace M., 516 N.W.2d 678 (Wis. 1994) (divided decision of state supreme court). However, the New York Court of Appeals is now one of only three state supreme courts allowing lesbians to adopt the biological children of their partners. See Adoptions of BLVB and ELVB, 628 A.2d 1271 (1993) (Vermont Supreme Court interpreting a statute to allow a lesbian to adopt the children of her partner without terminating the biological mother's rights); Adoption of Tammy, 619 N.E.2d 315 (1993) (Massachusetts Supreme Court using the best interest of child in interpreting statute to allow for adoption of child by lesbian partner of biological mother). For an in depth analysis of second parent adoption, see Suzanne Bryant, Defining Family: Adoption Law and Policy: Second Parent Adoption A Model Brief, 2 Duke J. Gender L. & Pol.233 (1995) and Julia Frost Davies, Note, Two Moms and a Baby: Protecting the Nontraditional Family Through Second Parent Adoptions, 29 New Eng. L. Rev. 1055 (1995).

Prepared By:

  • Kathryn W. Becker, `97
  • Quentin C. Faust, `97
  • James D. McCann, `97
  • Stephen A. Mutkoski Jr., `97
  • Charles Samuelson, `96

If you have views about the Court's decision or this LII commentary on it that you would like to share, the LII editors would be pleased to hear from you via an e-mail message to: editors@lii.law.cornell.edu