A Brooklyn judge has broken with long-standing legal tradition and denied a married lesbian’s request to adopt the infant son her wife gave birth to — saying that New York’s gay-marriage law makes such measures unnecessary.
Judge Margarita Lopez Torres sees the decision as an expression of how far gay rights have come — but experts say the couple could be in big trouble if they have an emergency in a state that bans gay marriage.
“Beware if you should go out of state,” said attorney Joseph Milizio, who specializes in gay issues. “If the child and the biological parent were injured and could not make health-care decisions, then the only person who could make decisions would be the biological parent.
“If that party is not recognized as the parent in that jurisdiction, then there could be a problem.”
The two women involved in the case are only identified by their initials, with A.C. trying to adopt the boy, identified as Seb C-M., to whom M.M. gave birth in 2011, according to court records.
The women were married in Connecticut in April 2011 and both are listed on the boy’s birth certificate — a fact Lopez Torres noted in her Jan. 6 decision.
Lopez Torres, a Brooklyn Surrogate Court judge, said that in the past, she would have rubber-stamped such a request. But now she feels that allowing an adoption between married partners would be redundant and imply that gay marriage was not as solid as traditional marriage.
“New York courts have long held that the presumption of legitimacy afforded children born of married parents is ‘one of the strongest and most persuasive known to the law,’ ” the judge said.
Lopez Torres acknowledged the “tectonic shifts occurring in the geography of our culture’s definition of family,” and concluded that “the relief sought herein by the petitioner is neither necessary nor available.”
The decision, however, could create complications for the nonbiological parent if the couple divorces in a state that doesn’t recognize same-sex marriage, experts said.