Acting Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place. K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.). In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.
Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling. In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated. This new case posed different facts.