New York Appellate Court Decision Affirming Out-Of-State Marriage Recognition

‘Yet another appellate court has ruled that government officials act lawfully when they respect out-of-state marriages of same-sex couples.’

(New York, January 5, 2009) — A decision last week from the New York Appellate Division, Second Department affirmed dismissal of a case brought by antigay Arizona group the Alliance Defense Fund and confirmed that Westchester County Executive Spano lawfully recognized out-of-state marriages of same-sex couples.

The Court said in its decision: …”The Executive Order at issue here requires that same-sex marriages be recognized to ‘the maximum extent allowed by law.’ By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so. Since it is within the authority of the County Executive ‘[t]o see that the laws of the state, pertaining to the affairs and government of the county…are executed and enforced within the county’) the Executive Order is not illegal.”

“Yet another appellate court has ruled that government officials act lawfully when they respect out-of-state marriages of same-sex couples,” said Susan Sommer, Senior Counsel at Lambda Legal. “The Alliance Defense Fund has wasted the courts’ time and taxpayers’ money in their years of consistently unsuccessful cases attacking these marriages in New York and the government officials who refuse to discriminate against lesbian and gay New Yorkers.”

In February 2008, in Martinez v. County of Monroe, the Appellate Division, Fourth Department in Rochester, also upheld application of the marriage recognition rule to valid out-of-state marriages of same-sex couples. Today’s decision comes after four ADF losses at the trial court level and is the first New York Appellate Court ruling on their cases challenging marriage recognition. The ADF, on behalf of several Westchester County taxpayers, challenged County Executive Spano’s June 6, 2006 Executive Order No. 3, which directs, “each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” In March 2007, the lower court ruled that Spano’s order was legally issued and consistent with New York law. That ruling was appealed. In oral argument on June 23, 2008, Lambda Legal represented Westchester County couple Michael Sabatino and Robert Voorheis, who had married in Canada and were permitted to intervene as defendants in the case.

“Today the court has re-affirmed that our relationship will be honored in the community where we live and where we make our life together as a married couple,” said Sabatino. “It is a relief to know that we will continue to enjoy the rights and benefits of our marriage.”

In July, Attorney General Cuomo, on behalf of Governor Paterson, filed a motion to dismiss a similar case brought by the Alliance Defense Fund. The ADF, on behalf of a group of taxpayers, challenged Governor Paterson’s May 14, 2008 directive that state agencies respect out-of-state marriages of same-sex couples, consistent with long-standing

New York law. The court granted Lambda Legal’s motion to intervene in the case on behalf of Peri Rainbow and Tamela Sloan, long-time public employees who are raising a special needs child adopted from foster care. The couple depends on the protections that come from respect for their marriage. On September 2, 2008, the New York Supreme Court (Bronx trial court) dismissed the lawsuit, ensuring that couples will continue to be treated equally in New York State.

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Ohio Supreme Court Allows Custody Decision to Stand in Lambda Legal Case Representing Lesbian Mother

‘The Court has expressly shut down arguments that Ohio’s antigay amendment impacts parenting and child custody relationships, rights, and responsibilities’

(Columbus, OH, January 5, 2009) –The Supreme Court of Ohio last week let stand an appeals court ruling affirming the enforceability of a court-approved child custody agreement in a case involving lesbian mothers.

“The Court has expressly shut down arguments that Ohio’s antigay amendment impacts parenting and child custody relationships, rights, and responsibilities,”said Camilla Taylor, Senior Staff Attorney in Lambda Legal’s Midwest Regional Office in Chicago. “The Court correctly declined an invitation to treat gay and lesbian Ohio parents differently from other families, and to deprive the children of these families of the protections and support other children receive.”

Lambda Legal represents Therese Leach in her fight to uphold a court-approved joint custody agreement signed by both her and her former partner, Denise Fairchild, in 2001. After their son was born in 1996, both women parented him. In order to ensure that Therese had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in the 2001 In re Bonfield case in which Lambda Legal participated.

The Supreme Court decision comes after Fairchild argued, at a trial court, and the Ohio Court of Appeals for the Tenth District, that Ohio’s antigay constitutional amendment limiting marriage to a man and a woman invalidated the court approved custody agreement she originally sought with Leach. All three courts brushed aside Fairchild’s arguments, ruling that court-approved custody agreements cannot be ignored or unilaterally undone by one of the parents. In July 2008, Fairchild asked the Ohio Supreme Court to hear her case, and Lambda Legal urged the Court to refuse. Today’s order from the high court is the final word on the matter.

The case is In re J.D.F.

Camilla Taylor, Senior Attorney in Lambda Legal’s Midwest Regional office in Chicago is lead counsel on the appeal. She is joined by co-counsel LeeAnn Massucci of Massucci & Kline LLC and Thomas Schmidt of Gahanna, Ohio.

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Erin Baer 212-809-8585 ext 267; Cell: 646-752-3251

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

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Tennessee Court order Bars divorced mom’s Partner of 9 years from Staying Overnight When mom Has Custody And Visitation of children

ACLU Urges Tennessee Appeals Court To protect rights of lesbian mom

NASHVILLE – In a brief filed today, the American Civil Liberties Union is urging a Tennessee appeals court to remove a ban preventing a divorced mom from having her partner of nine years and her own children stay at her home at the same time. The trial court unconstitutionally imposed the so-called “paramour restriction” on the lesbian couple even though the psychologist who performed the custodial evaluation in the case found the partner to be a positive influence in the children’s lives.

“Of course I’m willing to do anything to be able to be with my children, but this is really tearing us apart,” said Angel Chandler. “It’s been a huge emotional and financial drain on our family. It forces us to live apart almost every night, and it is denying my children quality time with a positive role model and person they love.”

Chandler and her former spouse, Joseph Barker, have two children, a daughter, 13, and a son, 15. Since they divorced more than 10 years ago, they have shared custody of the two children over the years. They have both entered into new relationships. Chandler has been with her partner since 1999. Barker remarried approximately 5 years ago.

It was not until May 15, 2008, that the court issued the restriction barring Chandler’s partner from her home any nights her children are with her. It was imposed after Chandler and Barker appeared before the Gibson County Chancery Court to modify their parenting plan. Even though a court-ordered psychological evaluation of all the parties noted that Chandler’s partner was a positive influence on the children, the trial judge imposed the restriction under the erroneous belief that he was required to do so under state law.

The restriction has caused a huge strain on Chandler’s relationship. Right after the order was issued, Chandler’s partner was forced to move back to North Carolina, making it virtually impossible for the couple to spend time together. Eventually they both relocated to North Carolina where they now live in a duplex that allows them to abide by the order. But Chandler had to leave her job and has just recently found suitable employment. The restriction has also been harmful to Chandler’s children, especially her daughter, who enjoyed spending time with her mother’s partner and who looked to her for advice and guidance. Living in the duplex, the couple is also losing rental income they relied on before the court imposed the ban.

“By all accounts, this family was succeeding, having gotten through a divorce and introduced a new parent into the home. But nine years on, a Judge has done his best to destroy all that by imposing this impossible restriction,” said Christine Sun, the Southeast regional senior staff attorney with the ACLU’s Lesbian Gay Bisexual Transgender Project. “We are hopeful that the appeals court will recognize that it is unfair to tear this family apart.”

The brief filed by the ACLU charges that the court was wrong to interpret state law as requiring it to impose the partner ban. The brief points out that while there is no evidence in the record to support the imposition of the restriction, there is ample evidence showing that the children were doing fine the first nine years when there were no restrictions on the children’s contact with the partner. The psychological report concluded that the children had a positive parent-like relationship with the partner and that children who grow up in homes headed by same-sex couples tend to develop normal social relationships. The brief also charges that the restriction is unconstitutional. It unconstitutionally interferes with Chandler’s ability to raise her children as she sees fit, and it places an impossible burden on gay and lesbian parents. The brief notes that unlike straight couples, who have the option of marrying, lesbians and gay men are barred from marrying in the state and would never be able to live with their partners under these restrictions.

“Unfortunately, this case is an all too familiar example of how unfairly lesbian and gay parents are treated in custody and visitation proceedings,” said Hedy Weinberg, Executive Director of the ACLU of Tennessee. “All the children’s health and welfare organization have long recognized that lesbian and gay parents are just as capable of being good parents as straight couples and their children are just as well adjusted. We’re hopeful the Tennessee courts will come to that realization too.”

In addition to Sun, Chandler is being represented by Lucian Pera and Brian Faughnan of Adams and Reese, LLP, Tricia Herzfeld of the ACLU of Tennessee, and Gregory Minton. A copy of the brief filed today in the Court of Appeals of Tennessee, Western Division is available at http://www.aclu.org/lgbt/parenting/38168res20081223.html.