NY Divorce Precedent

It is a good week to be a gay divorcee in NY.

In the first ruling of its kind, a judge will allow a couple married in Canada to file for divorce and settle a custody dispute in the state; a step in the right direction for New York.

What is really more interesting then the exciting new divorce rights we just attained, is the custody dispute that is going along with the divorce. I feel a little soap opera-y writing all the details out, but here it goes.

Donna, is the bio parent of both of the couples kids. Beth, didn’t adopt either of their daughters. Beth filed a motion to determine her parental rights and monetary obligations to her kids. Donna claims Beth has no right to the girls and that the case should be dismissed. But, Justice Laura Drager of New York County Supreme Court denied Donna’s motion to dismiss the case.

As far as custody goes, Drager is going against the 1991 ruling in Allison D. v. Virginia M. that found a woman whose partner had birthed their babies and who had not adopted those babies to be a “legal stranger” to the children. Drager is citing more recent appellate rulings challenging the precedent.

Here’s where the marriage part comes back in. Drager stated that the fact they entered into a marriage agreement is significant in determining custody even if they live in a state that does not grant marriages to two women. "These factors significantly affect the children's welfare... Although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children”

Interesting. Adopt those kids. Or at least get yourself married.