Massachusetts Same Sex Marriage and Same Sex Couples Residing in New York

On July 29, 2008, the Massachusetts House of Representatives voted overwhelmingly to repeal the 1913 law that prohibited non-resident gay and lesbian couples from marrying in Massachusetts, unless their home state also would recognize their marriage. Now that both the Senate and the House have passed the legislation to repeal the 1913 law, the bill will go to Governor Duval Patrick, who is expected to sign it. As a result of the repeal of the statute, gay and lesbian couples residing in other states would now be permitted to marry in Massachusetts, even if their home states would not permit them to marry in their home states.

While New York will not allow same sex couples to wed, it will recognize marriages performed in jurisdictions that allow same sex marriage. In doing so, the New York courts will follow the precedent set in Martinez v. County of Monroe. In that case, the plaintiff brought a challenge to Monroe Community College’s denial of health care benefits to the female partner of a female student. The Appellate Division had considered the following facts. On July 5, 2004, Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of Monroe Community College, in Rochester, New York. On the basis of that marriage, Ms. Martinez applied to the college two days later, on July 7, 2004, for spousal health care benefits for Ms. Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College’s Director of Human Resources denied the plaintiff’s application for spousal health care benefits. The plaintiff then commenced an action seeking, among other things, a declaration that the College’s failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law §296.

In deciding the couple’s rights to insurance coverage, the Appellate Division, Fourth Department, had to decide whether the parties were legally married. It held that if a marriage was valid in the place where it was entered, “it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute”. The Court then pointed out that by applying the “marriage-recognition” rule, New York has recognized a marriage which would have not been valid if solemnized in New York.

The Appellate Division concluded that Ms. Martinez’ marriage to Ms. Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.

Following the decision in Martinez v. Monroe County, in the case Beth R. v. Donna M., Acting Supreme Court Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel to address the issue as to whether Beth’s motion for declaration of her parental rights can be entertained by the court. Her legal position was in question since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff’s motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.”

Earlier this spring, New York Governor David A. Patterson has issued an directive requiring all New York State agencies to offer gay couples, wed in jurisdictions that allow same sex marriage (like Canada, Massachusetts and now California), the same legal rights as enjoyed by heterosexual couples.

All of the above is likely to make same sex marriage a reality in New York State, despite a lack of statutory authorization by the New York Legislature. New York couples will be able to travel to Massachusetts with the sole purpose of getting married and have their marriage recognized in the State of New York.

New Child Support Surcharge

New York has recently made changes to its child support enforcement statutes to comply with the new federal requirements. Changes to the fee for child support enforcement services followed a new federal requirement. The states are required to charge an annual fee of $25 in every child support case in which $500 is collected during the federal fiscal year. The fee applies only to those for whom the support is being collected and who never received public assistance. For those who have received pubic assistance, the statute increases the pass-through charge from $50 to $100, as of Oct. 1, 2008, and to $200 as of Jan. 1, 2010, when two or more children are involved.

Recent Changes to the Family Court Act Related to Orders of Protection

Governor Paterson has recently signed a law which expands access to Civil Orders of Protection, allowing a person who is, or was, in an intimate relationship with an abuser – even though not related to that person – to seek an order of protection in Family Court. This substantially expands protections for victims, who for a variety of reasons may be unwilling to press charges in criminal court. Family Court Act §812 (1) (c) was amended to include in the list of persons who the court has jurisdiction to grant an order of protection to: (1) persons formerly married to one another, “regardless of whether they still reside in the same household” and (2) persons who are not related by consanguinity or affinity. Subdivision (e) was added to Family Court Act §812 to include in the list of persons who the court has jurisdiction over for the purpose of granting an order of protection, “persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time”. For purposes of subdivision (e), neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”. Factors the court may consider in determining whether a relationship is an “intimate relationship” include, but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Laws of 2008,, Ch 325, § 10, effective July 21, 2008). This significantly enlarges the number of situations where a party can obtain an order of protection from the Family Court.

Out-of-State Orders and New York Child Support

In a recent decision, Spencer v. Spencer, the New York Court of Appeals has finally clarified issues related to application of the Uniform Interstate Family Support Act (“UIFSA”).

Prior to Spencer, in situations where a party had a child support order from a state where the age of emancipation was less than 21, the child support order expired due to the age of the child, and if New York courts had jurisdiction over the party, the custodial parent could bring a new child support petition in New York. Since the petition was treated as a new filing, and not a modification of the out-of-state order, the New York courts then could order child support to continue until the age of 21. This was highly inequitable to parties who had child support orders from the states where the age of emancipation was 18, such as Ohio, or 19, such as California.

Spencer was decided under the following facts. The parties in dispute were married and had several children while living in Connecticut. Following divorce, the mother moved to New York while the father continued to reside in Connecticut. When the eldest son turned 18, the Connecticut support order expired. In 2004, the alimony obligation also expired and the father, as the court noted, “began working three days a week as a consultant.” The mother brought a new child support petition in New York. The New York Family Court issued a new order in 2005 directing payment of child support lasting until age 21.

The Court of Appeals held that the New York order was a modification of the Connecticut support order under the one-order policy of the UIFSA. The Court of Appeals stated that the New York Family Court lacked subject matter jurisdiction to modify an out-of-state order, and child support terminated pursuant to the terms of the initial order. As a result of the decision, prior orders entered under similar circumstances should be vacated. Unfortunately, the Court of Appeals did not address whether recoupment of the child support paid under a new New York order is available to the parent who was paying child support.