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Decision That Backs Parenting Rights for Non-Biological Mother Lauded by Law School Clinic

Tuesday, May 04, 2010

New York, May 4, 2010—New York’s highest court Tuesday unanimously granted parental rights to a woman whose former partner blocked her from spending time with the child the two women had raised together since birth.

The Columbia Law School Sexuality & Gender Law Clinic had filed a friend-of-the-court brief with the Court of Appeals in the case, Debra H. v. Janice R on behalf of 45 law professors at all 15 law schools in New York State.

The Court of Appeals held that because the women had entered into a civil union in Vermont before the child was born, New York will follow Vermont law and recognize both women as the child’s legal parents.

However, the decision stopped short of establishing parental rights for non-biological parents who are not in legally recognized relationships. The Court refused to overturn its much-condemned 1991 ruling Alison D. v. Virginia M., which rejected parenting rights for a woman who had raised her son with her former partner.

“The decision is a bittersweet one,” said Suzanne B. Goldberg, Clinical Professor and Director of the Sexuality & Gender Law Clinic. “It is an important breakthrough for New York to recognize that two women or men can be legal parents of a child who is born to them, so long as they have registered their relationship through civil union or domestic partnership in a state where those statuses come with parenting rights,” she said.

“At the same time, the decision leaves out in the cold those parents who are raising children but who do not have a legally recognized relationship with their partner at the time the child is born,” Goldberg added.

In Debra H., the former partner had argued that because Debra H. was not the child’s biological or adoptive parent, she was a legal stranger to the child and had no parental rights. The decision means Debra H. can now go to court and seek visitation with and custody of her child if the child’s other mother does not allow for visitation.

Now that Debra H. has been decided, the focus will turn to the New York state legislature, where a bill is pending that would fill this parental recognition gap in state law.

Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School joins its traditional strengths in international and comparative law, constitutional law, administrative law, business law and human rights law with pioneering work in the areas of intellectual property, digital technology, sexuality and gender, criminal, national security, and environmental law.

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