Several recent cases in New York have adjudicated the parental rights, if any, of a same-sex partner who formally neither plans the conception of nor adopts a child brought into the relationship by the other partner. In K v. C, 55 Misc.3d 723 (Sup. Ct. NY Cty 2016), currently on appeal, Judge Frank Nervo of the New York Supreme Court denied a petition for a custody hearing, holding that the word “parent” in Domestic Relations Law §70 does not include a same-sex partner if there has been “abatement” of a mutual plan of adoption. Interpreting the landmark Court of Appeals decision handed down last year in Brooke SB v. Elizabeth ACC, 28 NY.3d 1, 2016, Judge Nervo found that the petitioner, who was challenging for visitation and custodial rights, had not shown by clear and convincing evidence that the agreement to adopt forged by she and her then-partner, the respondent, had lasted through the adoption of the child. In so doing, Judge Nervo acknowledged that he was creating a new test—emphasizing “abatement”—that was not necessarily inherent in Judge Sheila Abdus-Salaam's Brooke SB opinion.

Two other cases this year also applied Brooke SB, which dramatically changed New York policy by granting parental rights to a same-sex partner who at one time in the relationship agreed to have a child who was eventually born to the other partner after the relationship had ended. In March, a Suffolk County judge granted “tri-custody” to a man and two women who raised a child together (Dawn M v. Michael M, 47 N.Y.S.3d 898 (2017)); and late last month, in a case quite closely related to K v. C, Judge Thomas Rademaker of Nassau County Family Court used “equitable estoppel” to grant rights to a same-sex former partner of the biological mother of two children with whom no formal preconception agreement had been forged (JC v. NP). In fact, the arguments in Brooke SB, which was decided on different grounds heavily influenced by constitutional-level policy, had included equitable estoppel, and Judge Rademaker compared the case before him to opposite-sex situations in which it was in the best interests of the child to include a father to whom the child still had close ties despite the formal dissolution of the parents' relationship.

K v. C is a further variation upon Brooke SB, involving as it does an adoption plan rather than a plan to conceive, but it has elements in common with the earlier cases. In K v. C, too, there are continuing strong ties among the child and the party seeking custodial rights.

K v. C also raises constitutional-level issues including procedural due process “vagueness” as well as equal protection and substantive due process considerations strongly influenced by such recent U.S. Supreme Court cases as Obergefell v. Hodges, 35 S. Ct. 2584 (2015) and Pavan v. Smith, 137 S.Ct. 2075, (2017). These issues should also interest those following K v. C.

Vagueness

Standards set by judges, as well as those established by legislatures, need to be comprehensible to affected audiences, from prosecutors to couples planning to conceive or adopt a child. A due process vagueness violation can bring down a criminal statute or a government attempt to restrict speech, and it may also be found in Judge Nervo's requirement that the petitioner prove by clear and convincing evidence that “the parties had a plan to adopt and raise a child together that continued unabated.” K v. C, 55 Misc. 3d at 725.

How can similarly-situated couples work with such a standard? Does a single bad argument “abate” a plan? Or, as in K v. C, a formal separation between the parents with no gap in parental connection between the petitioner and child, and petitioner's continued financial and emotional support, often welcomed openly by the partner? Should it matter, as to “abatement” or constitutional-level issues, that many venues in which the couple might find opportunities for adoption only allow one member of a same-sex relationship to place her name on the adoption certificate? If the relationship goes south around the time of adoption, does the “abatement” kick in even if the (formally) non-adopting partner resumes the closest ties with the newly-adopted child?

Judge Nervo tries to provide guidelines utilizing the evidence brought in by the parties, but the interpretation of even undisputed facts may leave the analyst still seeking the hallmarks of “abatement.” The court seems to conflate with “abatement” the need for a showing that the child considered the petitioner to be his mother, but these are two separate issues: “Petitioner asserts she toured elementary schools with respondent and that she enrolled the child in, and paid for, extracurricular activities, including soccer, tumbling, and African Dance. 55 Misc. 3d at 727. The court finds all such involvement, while demonstrative of love and support of respondent and her child, is so limited as to lend no weight to petitioner's claim to parenthood.” This finding seems to have less to do with “abatement,” except perhaps to strengthen the petitioner's arguments on that issue, and more with the custodial hearing that this decision denies to the petitioner. And what clarification of “abatement” emerges from the court's lengthy crediting of many witnesses who report that “at no time did either party [tell them] that petitioner was a parent”? 55 Misc. 3d at 734. These repetitive passages seem to be weighing evidence as to the petitioner's post-adoption status as a parent, but the issue at this stage is whether her agreement to adopt, forged with the respondent, had “abated” without a clear, definitive explanation of what “abatement” means to the petitioner and similarly-situated, same-sex partners. Therefore, Judge Nervo's standard may violate a party's due process for vagueness.

Equal Protection/Due Process

The whole idea of “abatement,” even if it provides a clear standard for this and future disputes, may seem violative of Obergefell's mandate, re-confirmed by Judge Abdus-Salaam in Brooke SB, that same-sex couples be treated in parity with opposite-sex couples so that the “constellation of benefits” (Pavan) available to them and the children they adopt is equalized. Opposite-sex partners usually can or must include both of their names during an adoption process, hence protecting both parties' parental rights even if the relationship dissipates (or “abates”) prior to actual adoption. The petitioner, by contrast, is asked to bear the burden of proof as to whether her role in the adoption convincingly continued through the difficulties the couple was having.

Judge Nervo finds that nobody privy to the petitioner's generosity towards the child mistook that for a continuing role as an adoptive parent. While at best only minimally helpful in understanding the court's central test of “abatement,” these findings sometimes come close to being “stunningly anachronistic” (Justice Ruth Bader Ginsburg in Sessions v. Morales, 137 S Ct 1678, 2017) in their tilt against same-sex partners such as petitioner when compared to the credence granted a similarly-situated opposite-sex partner who has terminated his relationship with the mother. Dismissing the petitioner's being listed as “an emergency parent” for the boy's pediatrician, or her planning the child's schooling—up to and including enrolling him in and paying for his extra-curricular activities—the court finds these demonstrate “nothing more than a doting attention to the child”; similarly the petitioner's regularly taking the child to restaurants and caring for him at over-nights are merely “the acts of a friend dear to both the child and his mother.” 55 Misc. 3d at 727-28.

As an application of Brooke SB regarding New York Domestic Relations law, and as a treatment of the rights of same-sex partners who have worked together both before and after the adoption of a child, Judge Nervo's decision in K v. C raises significant issues worth following on appeal.

Richard H. Weisberg is Floersheimer Professor of Constitutional Law, Cardozo Law School, Yeshiva University.