The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.

In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.

Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.

In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.

In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.


Continue Reading Same-Sex Spouse of Biological Mother May Seek Custody and Visitation

Church and State.jpgIn the United States, there is perhaps no greater blending of Church and State than with marriage and divorce. New York’s recognition of same-sex marriage shines a light on a debate as old as the country.

It took the 16th century Protestant Reformation to reject marriage as a religious sacrament.  For  Martin Luther, marriage was “a worldly thing.”  In the 17th century, the English Parliament declared “marriage to be no sacrament.” It was to be performed by a justice of the peace, not by a minister. The Puritans brought secular marriage to America. Back in England the pendulum swung back to the religious right in 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but not of Quakers and Jews).

In New York, marriage is a hybrid. Domestic Relations Law §10 declares:

Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.


Continue Reading Marriage and Divorce: Is it Time for Separation of Church and State?

Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.


Continue Reading Defining or Questioning the Marriage Contract: Gay Marriages, No-Fault Divorce and Dissolved Civil Unions