Adoption of Evan, Matter of

• Decision Date: 30 January 1992
• Parties: In the Matter of the ADOPTION OF a Child Whose First Name is EVAN. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 997

583 N.Y.S.2d 997

153 Misc.2d 844

In the Matter of the ADOPTION OF a Child Whose First Name is EVAN.

Surrogate's Court, New York County.

Jan. 30, 1992.

Jame D. Marks, New York City, for petitioners.

EVE PREMINGER, Surrogate.

The petitioners in this adoption proceeding are two women: Valerie C., the biological mother of a six year old boy and her life partner, Diane F. They have raised the boy together since his birth and now seek legal recognition of their mutual status as parents. This appears to be the first such application in New York.

Because of the significant issues of first impression and the importance to the infant, the Court appointed Professor Sylvia Law, distinguished Professor of Family Law and Social Policy at New York University Law School, as guardian ad litem for the child. Professor Law was asked to investigate whether the proposed adoption is in the child's best interest. Her thoughtful and thorough Report found that it was and recommends that the Court grant the petition.

A home study by a licensed social worker retained by the Petitioners also found the adoption to be in the best interest of the child. The Court appointed a second licensed social worker to conduct an independent investigation. She agreed that the proposed adoption was in the boy's best interest.

The reports of Professor Law and the two social workers reveal the following facts:

The petitioners, Diane F. and Valerie C. have lived together in a committed, long term relationship, which they perceive as permanent, for the past fourteen years. Diane, age 39, is an Assistant Professor of Pediatrics and an attending physician at a respected teaching hospital. Valerie, age 40, holds a Ph.D. in developmental psychology and teaches at a highly regarded private school.

In 1985 Diane and Valerie decided to have a child together. Pursuant to their joint plan, Valerie was artificially inseminated with sperm obtained from a friend who formally relinquished any claim he might otherwise have had in relation to the child.

Evan was born in November of 1985 and has lived with the parties since his birth. Both home studies describe Diane as a warm, loving and nurturing woman who is committed to Evan and is an effective parent to him. Evan himself is evaluated as a bright, confident and independent young boy with a strong parental bond with both women. He "seems to accept the fact that he has two mothers and seems to have an equal bond with both" (Kling Study p. 2) and is a "charming, well nourished and articulate child who relates well to peers and adults" (Walter Study p. 3). He has a strong parental relationship with Diane, whom he calls Mama D. and an equal relationship with his biological mother, Valerie, whom he refers to as Mama V.

It seems clear that the proposed adoption is in Evan's best interest. He is part of a family unit that has been functioning successfully for the past six years. The adoption would bring no change or trauma to his daily life; it would serve only to provide him with important legal rights which he does not presently possess. It would afford him additional economic security because Diane would become legally obligated to support him (Domestic Relations Law § § 236, 240). He would also be entitled to inherit from Diane and her family under the law of intestate succession (EPTL §§ 2-1.3, 4-1.1) and be eligible for social security benefits in the event of her disability or death (42 U.S.C. § 402[d][1983]. Of immediate practical import, he would be able to participate in the medical and educational benefits provided by her employment, which are more generous than those possessed by Valerie.

There is another potential benefit to Evan if he is adopted by Diane. Although today Evan enjoys the devotion and support of two parents who love him and each other, in the event of their separation, it would be beneficial for Evan to retain his filial ties to Diane. In such event, it is known to be better for a child to continue its relationship with both parents, and the law recognizes this by "presum[ing] that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful" (Wise v. Del Toro, 122 A.D.2d 714, 505 N.Y.S.2d 880 [1st Dept.1986]; see also, Resnick v. Zoldan, 134 A.D.2d 246, 520 N.Y.S.2d 434 [2d Dept.1987]; Bubbins v. Bubbins, 114 A.D.2d 346, 493 N.Y.S.2d 869 [2d Dept.1985]. Yet if petitioners were to separate in the absence of adoption, under the law of New York (Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 [1991] and some other jurisdictions (Sporleder v. Hermes, 162 Wis.2d 1002, 471 N.W.2d 202 [1991]; Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212 [1991] Diane would have no right to visitation even if it were demonstrated that denying visitation would be harmful to Evan. In Alison D., supra, the Court of Appeals recognized that adoption would avoid this unfortunate result see 77 N.Y.2d at 656, 569 N.Y.S.2d 586, 572 N.E.2d 27. The California court in Nancy S., supra, recommended adoption as a solution, noting that "we see nothing in [our statutory] provisions [similar to those in New York] that would preclude a child from being jointly adopted by someone of the same sex as the natural parent." 228 Cal.App.3d at 841 n. 8, 279 Cal.Rptr. at 219 n. 8.

Even if, as anticipated, the petitioners remain together, there is a significant emotional benefit to Evan from adoption which is perhaps even more crucial than the financial. Separate or together, the adoption brings Evan the additional security conferred by formal recognition in an organized society. As he matures, his connection with two involved, loving parents will not be a relationship seen as outside the law, but one sustained by the ongoing, legal recognition of an approved, court ordered adoption.

Having determined that adoption would, for all the above reasons, be in Evan's best interests, the issue remains whether there is anything in the law of this state which would prohibit it. The Court has scrutinized the relevant statutes and finds no obstacle.

Under New York law, "[a]n adult unmarried person or an adult husband and his adult wife together may adopt another person" (Domestic Relations Law § 110). As an unmarried adult, Diane is thus qualified to adopt. While the second phrase--requiring that husband and wife jointly agree to adopt a child--is not literally applicable here, the underlying policy also supports adoption in this case. The petitioners are a committed, time-tested life partnership. For Evan, they are a marital relationship at its nurturing supportive best and they seek second-parent adoption for the same reasons of stability and recognition as any couple might.

No provision of New York law requires that the adoptive parent be of any particular gender. Indeed, New York specifically prohibits discrimination against homosexuality in granting adoption (18 NYCRR § 421.16[h][2].

New York law does require the consent of certain parties to an adoption. All of the consent requirements have been met in the instant case. Ordinarily a child over the age of 14 must consent to be adopted (Domestic Relations Law § 111[1][a], but Evan is only six. The biological mother must consent (DRL § 111[1][c], and is one of the petitioners in this case. The biological father must consent if he has maintained "substantial and continuous or repeated contact with the child." (DRL § 111[1][d] and [e]. Here the biological father has not met the standards that entitle him to object to adoption, and, in any event, he has explicitly waived any right to do so.

The only statutory provision which could be construed as impeding the instant adoption is DRL § 117(1), which provides that "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." If this provision were strictly enforced it would require termination of the parental rights of Valerie upon granting the adoption to Diane. This would be an absurd outcome which would nullify the advantage sought by the proposed adoption: the creation of a legal family unit identical to the actual family setup. The Court of Appeals has recognized, in another context, that

"[s]ection 117 itself does not pretend to discourage all contacts between an adoptive child and its natural relatives. Rather, the statute contemplates that such contacts may exist and that the natural relatives may desire to perpetuate the sense of family ... An adopted child may not ... be isolated from his or her natural family." (People v. Sheppard, 54 N.Y.2d 320, 325, 326, 445 N.Y.S.2d 420, 429 N.E.2d 1049, [1981].

Thus, particularly in situations in which the adoptive and biological relatives are known to one another and where the child has significant contacts with them, New York recognizes the value of continued relationship.

For example, in Matter of A.J.J., 108 Misc.2d 657, 438 N.Y.S.2d 444 [N.Y.Co.Sur.Ct.1981], the natural father of a child born out of wedlock sought to adopt the child with the mother's consent. The Court granted the adoption and allowed the mother to retain her parental rights, stating that

"the child should not be denied the privilege of legitimacy as well as the care and concern of his natural mother's property and her rights of intestacy merely because these adult natural parents refused to marry ... [and] contravene New York's policy of fostering the child's best interests above all else." (Id. 108 Misc.2d at 659, 438 N.Y.S.2d 444).

The Court exercised its equitable power to confer back to the consenting mother joint custodial rights and responsibilities in the child supra 108 Misc.2d at 660, 438 N.Y.S.2d 444 but see, Matter of Adoptions of Hope and Rebecca, 150 Misc.2d 319, 571 N.Y.S.2d 182 [Westchester Fam.Ct.1991].

See also, in Matter of Adoption of Anthony, 113 Misc.2d 26, 32, 448...