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An appellate court last week overturned the first ruling in New York to grant child visitation rights in a same-sex partnership. A unanimous panel of the Appellate Division, 2nd Department, ruled that Janis C., who had helped her domestic partner raise two children for three years, has no right under New York law to see those children now that the couple has split up. “Any extension of visitation rights to a same sex domestic partner who claims to be a ‘parent by estoppel,’ ‘de facto parent,’ or ‘psychological parent’ must come from the New York State Legislature or the Court of Appeals,” the 2nd Department said in Matter of Janis C. v. Christine T., V-1926/99. Janis C. and her partner, Christine T., committed themselves to each other in 1993 during a ceremony conducted by an ordained minister. Two years later the couple decided to have children. Christine T., the younger of the two partners, gave birth to a boy and a girl through artificial insemination. The children used both the women’s surnames and both women were considered by others to be mothers of the children. While Christine T. stayed home to care for the children, Janis C. worked to support the family. But when the couple broke up in 1999, Christine T. claimed that as the children’s biological parent, she had sole custody rights. Janis C., who never adopted the children, has been fighting over visitation ever since. A trial over visitation before Westchester Family Court Judge Joan O. Cooney garnered media attention and had its difficult moments, with the then 4-year-old boy explaining to television cameras that he did not want to see Janis C. because “she’s mean” and “she hit my mom,” according to news reports. But Janis C. won visitation in November 2000, when Judge Cooney found that the woman’s role in raising the children made her a “psychological parent.” Judge Cooney found that visitation would be in the best interest of the children. Christine T. appealed, but the 2nd Department allowed visitation to continue pending the court’s resolution. Last week the appellate court found in Christine T.’s favor, saying the doctrine of equitable estoppel did not apply to this case. Instead, the 2nd Department said, the court’s recent brief ruling in Matter of Speed v. Robins, 288 Ad2d 479, should govern. That opinion unanimously affirmed a Family Court ruling that a woman did not have standing to seek visitation with the child of her former same-sex partner. The 2nd Department said that the holdings of both Matter of Speed and Matter of Julia C. follow the precedent set by the Court of Appeals in Matter of Alison D. v. Virginia M., a 1991 ruling. Susan L. Sommer of the Lambda Legal Defense and Education Fund, one of several organizations to file friend-of-the-court briefs in support of Janis C., said this case shows it is time for the state’s highest court to either clarify the scope of the equitable estoppel doctrine or overturn Alison D. In Alison D., the court dismissed a habeas corpus petition by a woman in a same-sex partnership who claimed she should be considered a parent under New York domestic relations law. “We think this a very compelling case for the Court of Appeals to take on and once and for all establish that children of same sex relationships have the same right to safeguard bonds with their parents as any other children in New York,” Sommer said. She added that another 2nd Department ruling, Jean H. Maby v. Joseph H., 246 AD2d 282 (1998), had granted a non-biological ex-husband standing to seek visitation when his ex-wife opposed his future role in her child’s life. Sommer said Janis C. had not yet decided whether she would file for leave to appeal to the Court of Appeals. Justices Myriam J. Altman, Robert W. Schmidt, Sandra L. Townes and Barry A. Cozier concurred on the opinion. Carolyn H. Mann of Mann & Mann represented Christine T. Joan Iacono represented Janis C. Anne C. Weisberg of Fried, Frank, Harris, Shriver & Jacobson acted as law guardian for the children. Joining Lambda in an amicus brief were: the American Civil Liberties Union, represented by Simpson Thacher & Bartlett; Citizens’ Committee for Children; Lawyers for Children Inc.; and the Juvenile Rights Division of the Legal Aid Society.

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