Child Custody Disputes Among Unmarried Heterosexual and Gay Unmarried Couples Are Similar

March 12, 2013, by Law Offices of James V. Sansone
By Law Offices of James V. Sansone on March 12, 2013 8:00 AM |

pic_child.pngLater this month, the Manhattan Supreme Court will decide the fate of a child born last July to an unmarried, heterosexual couple. In the interim, the baby is stuck in foster care and under the purview of Child Protective Services.

How Could This Happen?

Jonathan Sporn, a 54-year-old pharmaceuticals executive, began co-habiting with his partner, Leann Leutner, a lawyer, in 2010. Both had been previously divorced, weren't in a hurry to marry again, but wanted to start a family. They sought the assistance of an anonymous sperm donor and last July, Leutner gave birth to a healthy boy, Lincoln Amory Aurelian Sporn Leutner.

On January 1, 2013, the mother, who had struggled with postpartum depression, committed suicide. Not recognizing Sporn as the father due to the couple's unmarried status, Child Protective Services stepped in and placed the baby in foster care.

Now Sporn and Leutner's sister, Susan Sylvester, are battling for custody of little Lincoln. The court has visited both homes and deemed them both appropriate for the child.

According to the law, Sporn isn't a parent because he never married Leutner and he didn't father the child. In addition, Sporn failed to immediately take steps to adopt Lincoln following his birth.

Case Bears Similarities to Challenges Gay Parents Face

In many respects, Sporn's situation resembles the same legal challenges that gay parents face: a mother or father who isn't biologically related to the newborn.

In May 2010, a New York State court ruled that a non-biological mother has the right to seek custody and visitation of a child born to her ex-civil union partner. However, the court also stated that it didn't recognize a gay parent's relationship to their child unless they were the biological parent, in a legally recognized relationship with the child's biological parent, or had secured a second-parent adoption.

In that case, the lesbian couple conceived a child through artificial insemination and prior to the child's birth, the women obtained a civil union license in Vermont. Following the son's birth, the non-biological parent sought a "second-parent" adoption, but her partner challenged these efforts. In 2008, the couple split up.

After the boy's birth, the non-biological parent, sought to obtain a second-parent adoption to establish a legal relationship with the child, which New York law permits. However, her partner continued to deny these requests. The women separated in 2006, but the non-biological parent remained active in raising the boy. Then suddenly, in 2008, the biological mother cut off all contact between her ex-partner and the child. As a result, the non-biological parent is seeking joint custody. That case is expected to be decided later this month.

What Should You Do?

If you are in a civil union, talk with a family law attorney prior to having a child by in vitro fertilization from an anonymous sperm donor. Your attorney can discuss with you all of the challenges you may face and how best to avoid similar legal challenges.

Do you have questions about your divorce, family law, children's issues, same-sex unions, juvenile dependency, adoptin, or spousal support? If so, call me or schedule a consultation with the Law Offices of James V. Sansone at 707-623-1875 or contact me by email. You can find additional information on family law, children's issues, spousal support, domestic violence as well as a list of resources you'll find helpful on our website.