Permits adoption by two unmarried adult intimate partners

Summary

The bill amends Section 110 of the domestic relations law to permit two adult unmarried intimate partners to adopt a child together. In addition, by replacing current references in the law to husband and wife with the gender neutral term "married couple", this proposal also clarifies that all married couples may adopt a child together.

Justification

Current statutory provisions in New York State allow an adult unmarried person or an adult husband and his adult wife together to adopt a child. In addition, the statutory provisions permit an adult or minor husband and his adult or minor wife to adopt each other's child.

Courts have misinterpreted the word "together" in the statute to have a preclusive effect on the ability of unmarried couples to adopt a child together. In Matter of Jacob and Matter of Dana, the Court of Appeals ruled that the unmarried partner of a child's biological mother, whether heterosexual (Jacob) or homosexual (Dana), who is raising the child together with the child's biological parent, has standing to become the child's second parent by means of adoption. The decision of the court stated that the statute uses the word "together" simply to insure that one spouse does not adopt a child without the other spouse's knowledge or over the other's objection. The court determined that the statute does not preclude an unmarried second parent from adopting his or her partner's children and that this principal applies regardless of the couple's marital status or sexual orientation. Sec Matter of Jacob, 86 N.Y.2d 651 (1995).

Despite these decisions, there is confusion about whether New York law permits a joint adoption by unmarried adult couples, neither of which is the biological parent. This can be particularly problematic for couples adopting children overseas where only one parent adopts in the foreign country and the second parent seeks to adopt in New York State. This legislation codifies the Court of Appeal's decision in Matter of Jacob and Matter of Dana, and will help ensure that unmarried adult couples may jointly adopt a child together where neither is the biological parent of the child - a question that was not addressed by the court of appeals decision. See In re Adoption of Carolyn B., 774 N.Y.S.2d 227 (N.Y. App, Div. 2004).

Allowing unmarried adult couples together to adopt a child will also ensure the child receives the full benefits that the Court envisioned in Matter of Jacob and Matter of Dana including:

* Social security benefit in the event of a parent's death or disability

* Life insurance benefits in the event of a parent's death; The right to sue for wrongful death of a parent;

* The rule to inherit under the rules of intestacy;

* Eligibility for health insurance coverage under both parents' health insurance policies;

* The right to have two parents participate in medical decisions in the event of an emergency;

* The right to receive economic support from two parents;

* The emotional security of knowing that in the event of death of parent, the other will have presumptive custody;

* The right to continue the relationships with both parent and extended families in the event of a separation; and

* The right to have both parents named on the birth certificate.

In addition, by replacing references to "husband and wife" with the gender-neutral term "married couple", this measure will help ensure that all married couples, regardless of their sexual orientation, have equal rights to adopt a child together.

Legislative history

Similar to 2009: A5652 referred to Judiciary; 2007-2008: A7449A referred to Judiciary; 2005-06: A.8329 referred to Judiciary

Fiscal implications for state and local governments

None.

Effective date

Immediately