Legal Alerts - May 2000
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New Jersey Court Expands Lesbian Parents' Rights

Once again, the New Jersey Supreme Court has demonstrated that it is one of more englightened courts in this country. In a recent decision involving a lesbian partner's attempt to gain the right to see the twins she helped raise with her former partner, the Court applied a four-part test to determine who should be considered a "functional or psychological" parent and thus be entitled to seek visitation rights.

The four elements of the test are: had the consent of the biological parent to act as a co-parent; lived with the child; taken on responsibility for the child's care during the cohabitation period; and done so for long enough time to forge a parental bond with the child. The Court ruled that these same factors should be used to determine whether a non-legal parent has right to visitation, whether the couple was heterosexual or homosexual.

New Jersey had previously ruled that same-sex couples and unmarried heterosexual couples could jointly adopt children, and this latest ruling puts New Jersey in the position of being one of the most enlightened legal jurisdictions for same-sex parents.

In its summary of the different state positions on the issue of visitation rights by non-legal parents, the New York Times (April 7, 2000) listed Connecticut, Hawaii, Massachusetts and Virginia which have state laws which expressly allow judges to grant custody or visitation to non-legal parents. Courts in the states of Wisconsin, Pennsylvania and Massachusetts have granted limited visitation rights to non-legal parents. Other states, like California and New York -- both of which have a great number of same-sex parents -- deny non-legal parents any rights whatsoever.

The United States Supreme Court is expected to rule very soon on the rights of grandparents to seek visitation rights, in a decision which is likely to have significant impact on the rights of non-legal co-parents.

Consistent with its position that non-legal co-parents have visitation rights, a trial court in Massachusetts has recently ordered the non-biological mother to pay child support for the biological parent's child, as a condition of granting visitation rights to the non-biological parent. The court ruled -- rightly, in my opinion -- that "with rights come responsibilities," concluding that if the co-parent wished to be granted the visitation rights of a de facto parent, she necessarily had to meet the financial responsibilities of parenthood.

For the full text of the recently-enacted Vermont legislation on civil unions, go to:

For the full text of the recent Vermont decision on gay marriage, go to:

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:
This is the site of Boston's Gay & Lesbian Advocates and Defenders, an excellent public-interest law firm serving the gay community. GLAD also recently issued Guidelines for resolving child custody disputes in our community.
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.,
This sites features current news and articles compiled by the National Center for Lesbian Rights
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.

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General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at and make an appointment to meet with him.