Lawyers Manual - Unified Court System

408 Sharon Stapel
Although New York does not allow most LGBT people to use the Family or
Supreme Court to obtain orders of protection, the New York City Criminal
Court has held that New York Courts must give full faith and credit to
protection orders from other states, even if they are issued to a same-sex couple
who would not be entitled to the same relief in New York. 27
Custody and Visitation
When there is a legal relationship between the child and both same-sex
partners or opposite-sex bisexual or transgender partners, whether through
adoption, marriage or an order of filiation, the courts in determining custody and
visitation matters look to the “best interests of the child.” The Domestic
Relations Law requires a court to consider the effect of domestic violence upon
the best interests of the child in determining custody or visitation and applies to
LGBT custody determinations. 28 If there is no legal relationship between the
child and one of the partners, the courts treat the non-related parent as a
“stranger,” who must show extraordinary circumstances, such as the unfitness of
the parent, before the courts will consider the child’s best interest.
New York Courts have afforded no help to same-sex partners who have not
adopted the child of their partner. The New York Court of Appeals has held that
a long-term same-sex partner who planned with the biological mother to
conceive children with the intent of raising the children as a family does not
have a right to visitation unless the child has been adopted. 29 New York courts
have also held that the doctrine of equitable estoppel was unavailable to a samesex
partner and that parens patriae does not provide a basis for granting
standing to a former same-sex partner of the biological mother of two siblings,
one of whom the partner adopted and the other she did not, to seek custody of
the non-adopted child. 30
Public Assistance and LGBT Domestic Violence
Given the problems obtaining civil orders of protection for LGBT clients
and the attendant problems using the criminal system, safety planning often
takes the form of increased financial assistance for LGBT survivors of domestic
violence. New York State’s Sexual Non-Discrimination Act (SONDA) 31
prohibits discrimination on the basis of sexual orientation in employment,
education and housing accommodation. 32 Under New York City and New York
State anti-discrimination law, LGBT public assistance recipients should be
treated as any other public recipient is treated. Sexual orientation has no effect
on eligibility for public assistance, and the Family Violence Option (also known