New Yorkers have apparently been engaging in self-flagellation following the Iowa Supreme Court’s decision to extend the right to marry to same-sex couples, putting “flyover” country ahead of New York in the vanguard of advancing LGBT rights. Now a Democratic state senator is criticizing the state’s governor for insulting the newly installed archbishop of New York by introducing legislation to extend the right to marry to same-sex couples at a time when it is unsure whether this legislation will be able to clear that chamber of the state legislature.
As if that isn’t bad enough, these developments come at the same time that the First Department of the New York Supreme Court’s Appellate Division issued a decision in Debra H v. Janice R. in which that court followed a nearly two-decade-old precedent that “provides that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70, even though that party may have developed a longstanding, loving and nurturing relationship with the child and was involved in a prior relationship with the biological parent.” Following that precedent, the court summarily dismissed the case, not even allowing a hearing on the petition for joint legal and physical custody filed by the registered domestic partner/civil union partner who had “served as a loving and caring parental figure during the first 2 ½ years of the child’s life.” Sadly, this decision is even behind the curve with regard to my home state of Pennsylvania, which does not recognize same-sex relationships but which does permit both (1) second-parent adoptions and (2) nonbiological, nonadoptive parents to seek custody of a child using the doctrine of in loco parentis. I would expect more from the New York courts in dealing with nontraditional family arrangements, especially when that state’s highest court so famously articulated an inclusive definition of family in Braschi v. Stahl Associates, Co. some twenty years ago.
For me, however, this case is even more disturbing as one in what seems like a line of many cases in which lesbians and gay men appear to be all too willing to embrace oppressive legal precedent to achieve their own immediate ends in preventing someone who was formerly such an integral part of their and their children’s life from having any further contact with those children. To me, at least, this seems short-sighted on a number of different levels.