SEPT. 12, 2014
New York Times
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The Marriage Equality Act, which New York State passed in June 2011, allowed Jann Paczkowski to marry her partner, Jamie, with the assurance that “the marriages of same-sex and different-sex couples” would “be treated equally in all respects under the law.” But when the couple separated and Ms. Paczkowski sought joint custody of the 2-year-old boy they were raising together, she discovered the limits of that assurance. On June 30, 2014, a judge in Nassau County family court ruled that Ms. Paczkowski did not have legal standing to seek access to the boy — because even under the Marriage Equality Act, she was not his parent.
In his decision, Judge Edmund M. Dane acknowledged “inequity” and “imbalance” in the law, adding that if Ms. Paczkowski were a man in the same position, the law might point toward a different ruling. But in the end, he left Jann with no contact with the boy.
The decision devastated Ms. Paczkowski, 36. “You can see how angry and upset I am,” she said on a recent afternoon, seated beside her court-appointed lawyer after a morning spent moving cars for an auction house. She had not seen the boy since a brief visit on Mother’s Day.
“For 17 1/2 months I changed his diaper in the quickness of a dime,” she said. “I fed him. I sat him in a high chair, one spoonful for you, one for me. At night he crawled up to me in bed. Each step that my son took, I did it with him. That’s what a parent does.”
Beyond her pain, the ruling also illuminated a snarl in New York’s treatment of same-sex couples, three years after the passage of the Marriage Equality Act, according to some legal scholars.
“This is a troubling ruling because it leaves a same-sex parent as a legal stranger to her child,” said Suzanne B. Goldberg, director of the Center for Gender and Sexuality Law at Columbia University law school. Family law, she said, “has not caught up with the way families live their lives, or the rest of New York law. And that gap is causing tremendous damage.”
The case of Jann P. v. Jamie P. is messy and at times disturbing, as breakups often are, but the questions it raises are broad: What does it mean to be a parent to a child? And as the state promises equality to same-sex unions, in which only one spouse can be biologically related to a child, how does it value the ties between parent and child, outside of biology?
“Basically you’re looking at 237 years’ worth of laws that heterosexuals put into law, that in my opinion need to be cracked like the Ten Commandments,” Ms. Paczkowski said, her features balled up in frustration. “It needs to be changed.”
Jann Paczkowski and Jamie Lechner met in July 2008, through the social networking service airG. Jann was involved with another woman at the time, in a relationship she characterizes as abusive; Jamie, 10 years younger, was dating a man.
Jamie, who declined to be interviewed for this article, seemed cool, Jann said, and by late August they started spending nights at each other’s homes.
They moved into Jamie’s apartment in Long Beach on Long Island, where she worked as a cashier at Waldbaum’s, Jann said. They were two people who had experienced severe hurt in their lives, Jann said, but for two years they did not turn that hurt on each other.
“We had our arguments,” Jann said recently. “But it was pretty good. She worked. I worked. It was hard, but we did make it happen.”
That happiness did not last. The women fought with each other, sometimes physically, and on several occasions Nassau County’s child protective services agency was called to their home on suspicion of abuse or neglect.
Within a year, Jann moved out. Using a form she and her father found on the Internet, the couple signed a separation agreement last August. It gave Jann time with the boy every Saturday and every other Sunday and stipulated that no one other than the two women would raise him. “Joint Custody,” they agreed, “will be determined at a later date upon further and in depth discussions.”
On Dec. 5, 2013, Jann filed a petition for joint custody, using a form provided by a social worker. She did not have a lawyer. Jamie Paczkowski moved to dismiss the petition, arguing that Jann was not a parent to J. and so had no standing to seek joint custody.
In New York, Jamie had the law on her side.
It may seem natural to say that a married spouse who holds herself out as a child’s parent from birth — participating in the decision to have the child, attending prenatal care and delivery, living with the child and sharing in the child’s upbringing — is for all practical purposes the child’s parent. But New York courts have not seen it that way, especially in cases of same-sex parents.
“I always like to say to my clients, they have to think 1950s,” said Carol L. Buell, a lawyer who works with gay and lesbian partners. “The only way your family will be protected is if you think like the 1950s: Make an honest woman of your partner, marry her before you have children. I sound like a very conservative person every time I give advice. But there’s a whole category of children who are now illegitimate.”
Children born to a married couple are legally presumed to belong to both spouses; for those born before a marriage — like J. and numerous children born to gay parents before the Marriage Equality Act — only the biological parent is presumed to be the parent.
New York’s highest court addressed the question of a non-biological mother’s rights in 1991, ruling that a woman named Alison D. did not have standing to seek visitation rights to the child born to her former partner, Virginia M., even though she had been involved with the child since before birth. The court held that to allow Alison D. access to the child would infringe upon Virginia M.’s right to decide with whom her child associated. Simply acting as a mother to the boy did not make Alison D. a parent, the court ruled.
Even if it would be “beneficial to a child to have continued contact with a nonparent,” the judges said, they could not compel the other parent to grant that contact.
The decision was hotly contested at the time. In her dissent, Judge Judith Kaye — who later became the top judge in the state — wrote that in defining parenthood solely by biology, the decision unfairly hurt children by severing ties that might be crucial to their development. She warned that the ruling “may affect a wide spectrum of relationships — including those of longtime heterosexual stepparents, ‘common law’ and non-heterosexual partners such as involved here, and even partners in scientific reproduction procedures.”
Judge Kaye proved prescient. The Alison D. ruling affected “countless cases across the state,” wrote another appeals court judge, Victoria Graffeo, in a 2010 decision. Though other states passed laws to recognize de facto parents, New York’s did not, allowing non-biological parents only one route to legal status, by adopting their partners’ children.
At the same time, though, in cases involving heterosexual couples, various courts treated husbands as de facto fathers, even if they were not biologically related to the children. Judges weighed the best interests of the child in granting the men custody or visitation, or in ordering them to pay child support.
Jann and Jamie Paczkowski knew none of this as their marriage flew turbulently apart last year. In their separation agreement, filed in August 2013, they described J. as a “child of this marriage” and stipulated that no one else could adopt him through either spouse’s later marriages.
When Jann filed for joint custody in December, she wrote that continuing her relationship would benefit the “mental well-being of the child.” She did not challenge Jamie’s fitness as a parent, she said, because she did not want to antagonize her.
This hurt Jann’s case in ways she did not anticipate. As Jamie’s lawyer argued in her motion to dismiss, Jann could only seek custody over a biological parent’s objection if she claimed Jamie forfeited her parental rights by abandoning, neglecting or abusing the boy.
But there were, in fact, reasons to question Jamie’s fitness. She had taken up with a volatile boyfriend, who was subsequently given a court order to stay away from Jamie and J. In February, as lawyers were preparing papers, a judge deemed Jamie neglectful for, among other things, failing to protect J. from her new boyfriend.
A lawyer for the child, Dennis G. Monahan, supported Jamie’s motion to dismiss, arguing that Jann could not “simply claim that child as legally her own because she has held him out as her child, provided financial support for him, and indeed loved him as her own.” Mr. Monahan did not address whether continuing a relationship with Jann was in the child’s best interest. Under the law, Mr. Monahan said in an interview, Jann had to have standing first. “Even if one would say it’s in the best interest of the child,” he said, “you still have to get past the standing issue. You have to get to the first plateau before you can get to the second plateau.”
Jamie’s lawyer, Lauren Broderick of the Legal Aid Society of Nassau County, declined to comment for this article because it was against the society’s policy.
At a playground near her home last month, Jann stewed over the way the court decision played out. The playground was empty on a hot afternoon; it had been a place she took J. before Jamie cut off her visitations, she said.
In his ruling, Judge Dane had acknowledged that if Jann were a man who held himself out as J.’s father “for a period of time sufficient to establish a paternal bond with the boy, he would have standing to file a petition seeking a declaration of paternity,” which in turn would allow him to seek custody, he wrote. But Jann did not have this option, the judge wrote, because she cannot claim that she is J.’s father “and the law does not provide for a proceeding to declare maternity.”
The Marriage Equality Act, the judge noted, called for gender-neutral treatment of spouses, but it was up to the state legislature to amend the law, not up to family court judges.
“With the passage of the Marriage Equality Act,” he wrote, “the State of New York took a significant step in redefining longstanding concepts of what constitutes a family under the laws of this State. As the circumstances of this case demonstrate, it is apparent that this process of evolution is incomplete.”
Susan Sommer, head of constitutional litigation at Lambda Legal, said the judge could have read the law with gender-neutral language, letting Jann claim “parentage” instead of paternity, which would have given her standing to seek custody.
“It’s a sad situation, for the children” who were “left without legal protection for a relationship with a second parent,” said Ms. Sommer. “They deserve a level playing field, no different than children born of different-sex couples.”
Jann has filed an appeal.
In the meantime, she said, life had become complicated. In July, J. appeared at day care with “red marks and bruising on both sides of his face” that were “consistent with hits by a hand on both sides of the child’s face,” according to court documents. Jamie told child protective workers that neither she nor her boyfriend had hit the boy, but the hospital found that his injuries were “not consistent with” her explanation, according to records.
The court removed J. from Jamie’s home and placed him in foster care. Jann has no contact with him or the foster mother.
Jamie is also pregnant. Jann’s lawyer, William Sheeckutz, explained the irony of the situation. Since Jann and Jamie are still married, the law presumes Jann to be a parent to the child Jamie is carrying, in a way it didn’t with J., who was born before their marriage. “If my client were to file for custody,” Mr. Sheeckutz said, “it might open the doors to a negotiation where the bio mother says, ‘Fine, let me have the second child,’ and lets the first child go.”
Jann seemed to weigh this as a possibility, an absurd ending to an absurd drama. For now, she is trying to persuade J.’s social worker to allow supervised visits with him in foster care. She was trying to save money to give him small gifts, she said.
“It shouldn’t be about gender anymore,” she said. “That should be wiped out. Even though there’s new gay laws out there, well, guess what? Where is the law giving the option to a non-parent? Let the non-parent say: ‘I want to be a parent to this child. I want rights. What do I have to do?’ ”
If you have questions as to how this article affects you, contact the Matrimonial/Family Law Attorneys at Berger, Fischoff, Shumer, Wexler & Goodman, LLP for a free consultation.