Adoption by Close Friend (and Not Romantic Partner) of the Child’s Parent

An “intimate partners without benefits” case, from In re Adoption of G., N.Y. Slip Op. 23454 (Surr. Ct. Dec. 27, 2013):

In this uncontested second-parent adoption proceeding, the court is faced with an interesting question: may two close personal friends, who together decided to adopt and have jointly participated in all aspects of the adoption process, and have been, in fact, raising a child together, be her joint, legal adoptive parents? For the reasons to follow, the answer is yes….

KAL and LEL met in 2000 and quickly became friends. They worked together for a number of years and their friendship deepened with time. Because LEL was a very close friend, KAL confided in him, telling him of her plans to become a mother using artificial insemination. LEL offered to be the father, rather than having KAL use an anonymous sperm donor and then be a single parent. KAL agreed. After two years of trying to conceive a child, including a round of unsuccessful in-vitro fertilization, KAL and LEL decided to instead adopt a child together.

KAL and LEL researched adoption options and together selected Ethiopia as the country of origin for their child. They spent years planning and hoping, when they finally received the call in 2011 that a child was waiting to be adopted. KAL and LEL traveled together to Ethiopia to meet G. for the first time. They then made a second trip to bring G. home to New York. Because KAL and LEL were not married to each other, they could not adopt G. together in Ethiopia, so KAL alone adopted her.

Upon returning to the United States, KAL registered the foreign adoption in Family Court in Kings County, New York. LEL then petitioned this court to adopt G. and become her second legal parent. KAL executed a consent to the relief sought in the petition, so long as the adoption does not extinguish any of her parental rights and only if such adoption results in joint custody.

From the moment they met G., more than two years ago now, KAL and LEL have functioned as her parents. KAL and LEL consider themselves G.’s co-parents and G. knows them as her parents. G. calls KAL “Mommy” and LEL “Daddy.” G.’s legal surname is the last names of both KAL and LEL, hyphenated.

KAL and LEL, although they live in separate households, have created a nurturing family environment for G., including a well thought-out, discussed, and fluid method of sharing parenting responsibilities between their homes. G. spends time each week in both her homes: KAL’s house in Brooklyn and LEL’s apartment in Manhattan. During the week, G. is in daycare near KAL’s workplace and LEL’s apartment. Depending on their schedules, KAL and LEL take turns caring for G. or get together for meals and activities. KAL and LEL speak by phone daily to coordinate schedules but mostly to update each other on their experiences with G.G. speaks with both parents each day as well. KAL and LEL consult with each other regularly on issues related to G.’s development, nurturing, and discipline. They support each other in their shared experience of parenting G….

Domestic Relations Law § 110: Who may adopt

Domestic Relations Law § 110 sets forth the classes of people authorized to adopt another person in New York, including: “[a]n adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together….” I am persuaded that LEL has standing to adopt and, together with KAL, is eligible to be one of G.’s legal parents.

“Intimate Partners”

A 2010 amendment to section 110 added the class “two unmarried adult intimate partners together” to the list of proposed parents who have standing to adopt. The phrase “intimate partners” is not defined in the statute or elsewhere in the Domestic Relations Law, and thus interpretation of its meaning is necessary.

The court’s role in interpreting a statute is to attempt to ascertain the Legislature’s intent and then to construe the statute to effectuate that intent. The text of the statute itself is the first place to which courts turn to determine legislative intent because it is the clearest indicator of such intent….

It is difficult to identify a definitive plain meaning of “intimate partners” …, because it is a relatively new phrase, and one of many imprecise terms used to describe relationships along a continuum between “acquaintance” or “friend” and “sexual partner” or “spouse.” The phrase is not defined anywhere in the laws of New York. When defined by other jurisdictions, “intimate partners” encompasses a wide range of individuals, from spouses or persons who cohabitate or have cohabitated (18 USC § 921[a] [32]); persons who are or were involved in a dating relationship, defined as an association characterized by the expectation of affectional or sexual involvement (Neb Rev Stat § 28–323[8]); “persons who reside together” (Kan Stat Ann § 60–3102[b]); persons “who [are] similarly situated to a spouse” (18 USC § 2266[7][B]); and even individuals whose intimacy is to be “determined by the length of the relationship, the type of relationship, and the frequency of interaction” (18 USC § 2266[7][A][i][II]). This inability to ascertain the “plain meaning” of the actual words used in the Domestic Relations Law compels the court to engage in statutory construction by using the familiar rules or principles established by both the legislature and common law for such construction, but always with the goal of discerning the true legislative intent.

One such rule of construction is that legislative enactments creating a right in derogation of the common law — the adoption statute being one of them — must be strictly construed. In Matter of Jacob, the Court of Appeals held that this strict construction of the adoption statute requires consideration of — and loyalty to — the legislative purpose for its enactment, the child’s best interests. Relying on this very specific legislative purpose, the Jacob Court read a prior version of section 110 (before its 2010 amendment to add “intimate partners”) broadly to confer standing in second-parent adoptions on the unmarried partner of a child’s biological parent.

To support its broad reading, the Court of Appeals took note of the continuing statutory expansion, since World War II, of the categories of people who may adopt. This expansion has continued apace since Jacob was decided in 1995. Section 110 has been further amended to broaden the classes of persons eligible to adopt: in 1999, it was amended to make it unlawful to prevent a prospective adoptive parent from adopting solely based on having cancer or any other disease. Like the Jacob Court, the legislative finding leading to this statutory change emphasized the relevance of the statute’s purpose:

The legislature further finds and declares that neither cancer nor any other specific disease should be an automatic ground to disqualify an otherwise qualified applicant from adopting a child. The legislature further finds that each adoption should be judged upon the best interest of the child based upon the totality of the circumstances.

Acknowledging their obligation to interpret the statute with the child’s best interests in mind, courts have consistently read DRL § 110 in an expansive manner with respect to the class of persons that may adopt. Last year, for instance, this court conferred standing in a second-parent adoption to a petitioner who had been the “functional parent,” but was not at that time living with, nor in a spousal relationship with the child’s existing legal parent. Another court recently approved the adoption of three children by their paternal grandmother and their paternal aunt who, the court found, functioned as a typical two-parent family. (Matter of A., 27 Misc.3d 304, 893 N.Y.S.2d 751 [Family Ct, Queens County 2010]; but see Matter of Garrett, 17 Misc.3d 414, 841 N.Y.S.2d 731 [Sur Ct, Oneida County 2007] (denying joint petition for adoption by natural mother and her biological brother, for him to become child’s legal father).) …

The legislative history of the 2010 amendment to DRL § 110 [details omitted -EV] thus supports the interpretation of the phrase “intimate partners” to include a relationship such as the one we have here: very close, loving friends, who have an intimate connection, which includes planning for and raising a child together. Indeed, the experience of jointly and intentionally parenting a child is itself of the most intimate nature.

This interpretation of “intimate partners” in the context of eligibility to adopt under DRL § 110 is dictated by the legislative purpose of the statute: that it is in their best interests to provide children with a parental relationship. The legislative intent behind the numerous amendments to the statute, of increasing the classes of persons with standing to adopt, advances that purpose and, consistent with New York’s strong policy of assuring that as many children as possible are adopted, also supports this broader interpretation….

Best Interests of G.

The adoption statute must be applied “in harmony with the humanitarian principle that adoption is a means of securing the best possible home for a child[.]” Moreover, the best interests standard that guides the courts in adoption cases requires a context-specific review.

The social worker who conducted the home study for this adoption … interviewed both KAL and LEL, visited their homes, and collected the information necessary to make the factual evaluation to determine that it would be in G.’s best interests to have LEL become her legal parent together with KAL. Her evaluation was specific to G., KAL, and LEL. She noted that both LEL and KAL provide for her financially, emotionally, and in every other way parents provide for their children. She found that G. is well cared for by both of her functional parents.

There is little question here that both KAL and LEL individually are qualified to adopt G. as her sole parent. The question then becomes, is it in the best interests of G. to have both KAL and LEL as legal parents, even though they do not have a spousal or romantic relationship, and do not live together?

Historically, there has been an implicit, and often explicit, preference for giving adoptive children homes in nuclear families consisting of parents who are husband and wife. This idealized family structure is often referred to as “traditional.” The label “traditional” family for the nuclear, heteronormative family, implying it is the typical family, is a misnomer in any event. The “nuclear family” has not represented the norm for large sections of the population in a long time.

Today, nearly one-third of children in the United States do not live in a household with their two parents. Various statutes and court decisions in the family law context already recognize and approve of children being raised in non-traditional families. Children are raised in multiple households as the result of divorce, in families with step-parents in the household, in families formed through assisted reproductive technologies, in families with same-sex co-parents, in single-parent families, in foster families, as well as in households with a variety of family members, such as grandparents, aunts and uncles, or other extended family actively engaged in raising children. Clearly, contemporary society’s understanding of what makes a family is evolving and expanding, as is reflected by the discussion of this concept in popular culture and the media, in the political and policymaking arena, and even in the legal community. As society acknowledges an ever expanding cadre of family compositions, adoption law, as the Court of Appeals in Jacob directed, should not lag behind. To do otherwise would have the effect of withholding the benefits and protections of a legal parent from children without regard for what would be in their best interests.

The policy of looking to the best interests of the child “would certainly be advanced” in G.’s situation by allowing the two adults who actually function as her parents to become her legal parents. In fact, had G. been the biological child of KAL and LEL, New York would have recognized them as her legal parents, even if they had the same type of relationship they now have. Denying her the possibility of having two legal parents as a result of a narrow interpretation of the adoption statute would yield an incongruous result and defy reason.

KAL and LEL are two loving adults who are both functioning as G.’s parents and have a relationship with each other built on a solid, decade-plus friendship. Even though LEL and KAL have been raising G., to date, solely KAL has been her legal parent. Granting the present petition serves to recognize that LEL and KAL are together and individually permanently committed to raising G. The court finds that it is clearly in G.’s best interests to have LEL become her legal parent….