Joint Adoption Greenlighted

Appeals court rules lesbian couple need not adopt in stages

By a 3-2 majority, a panel of the New York Appellate Division in Rochester ruled on March 19 that an unmarried adult couple may jointly adopt a child. Overturning a decision by Monroe County Family Court Judge Gail A. Donofrio, the appellate court ruled that Nancy Hackett and Sheila Sloan, a lesbian couple residing in Rochester, should have their adoption petition decided on the merits of the best interest of Carolyn B., who is nearing her sixth birthday.

According to the opinion for the court by Justice Samuel L. Green, Hackett and Sloan have lived together as a couple since 1981, had a commitment ceremony recognized by the Episcopal Church, and are registered as domestic partners in Rochester. In 1996, they became adoptive parents of another infant in two successive adoption proceedings. Green characterized them as “living together in a longstanding cohesive family unit.”

Carolyn, who was born in 1998 in Cambodia, had initially been adopted by another couple, but they surrendered custody to an adoption agency in 2001, and she was then placed with Hackett and Sloan, who jointly petitioned to adopt her.

The adoption agency recommended approval of their petition “with pleasure and without reservation,” but Donofrio rejected the petition, finding that the New York Domestic Relations Law does not authorize joint adoptions by unmarried couples.

The statute states that “an adult unmarried person or an adult husband and his adult wife together may adopt another person,” so Donofrio ruled that the couple must adopt the child in two separate proceedings, as they had done with their first child. Even this process only became possible in 1995, when the state’s highest court, the Court of Appeals, held that an unmarried co-parent can adopt her partner’s child without the partner’s parental status simultaneously being terminated.

Green found that the spirit and reasoning of the 1995 decision dictated the result in this case. Once the Court of Appeals had ruled that unmarried co-parents of the same sex may both be the legal parents of the same child, there seemed little reason to put people through the burden of serial adoptions as opposed to joint adoption. Green concluded that state law “poses no statutory impediment to joint adoption by two unmarried persons of a child who is not the biological child of either of them.”

Green reasoned that it would not be in “the best interests of Carolyn” to require her mothers to file two successive adoption petitions, because during the time between the granting of the two petitions the child would be deprived of the benefit of having two legal mothers.

Since Donofrio had never reached a determination of whether the adoption would be in Carolyn’s best interest, the appellate court could not grant the adoption outright, but sent the case back to Monroe County Family Court for further proceedings.

Presiding Justice Eugene F. Pigott wrote a dissenting opinion, joined by Justice John F. Lawton, arguing that adoption in New York is a creation of statute, and as such the court did not have authority to go beyond what the statute provides on its face. It should be up to the legislature, not the court, he wrote, to decide that the statute should be broadened to encompass unmarried adult partners as prospective joint adoptive parents.

Rochester attorney Gregory Franklin represents the mothers.

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