A Brooklyn judge, citing some complications that have arisen from the legalization of gay marriage in New York State, halted the adoption of a child by the wife of the mother.
Brooklyn Surrogate Judge Margarita Lopez Torres ruled that the adoption “is neither necessary nor available” because New York State marriage law already grants custody to both spouses. Still, the anonymous couple wished to cement the adoption in case of a change in law, or if they separate, or if they have a medical emergency in another state. While the judge was sympathetic to their request, she ultimately ruled that "no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship.” Essentially, the judge ruled, you can't offer guardianship to someone who already has it.
“While this should be considered a tremendous victory to same sex couples, it leaves a lot of trepidation,” the couple's lawyer, Michael DiMauro, said of the judge's refusal to allow the adoption.
In her decision, Judge Torres explained that by granting adoption rights to the mother of the child, the state law would be somewhat invalidated. "“Such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship,” the judge explained to the court room.
But same-sex couples remain wary of leaving anything to chance until same-sex marriage is law nationwide. Even last year's Supreme Court decision that ordered the federal government to recognize gay marriage has not settled the minds of some gay couples.
“The judge is practicing wishful thinking and looking at the issue through rose-colored glasses in saying that because a couple is married and because New York state gives the presumption of parentage they should not have to do an adoption," attorney Diana Adams told the Brooklyn Eagle. “Yes, same-sex couples should not have to go through the hassle of adoption, but the reality is that being married would not be sufficient to guarantee parental rights in other states.
The couple has not decided yet whether to appeal the court's decision.