FAMILY LAW
Two LGBTQ Cases SCOTUS Won’t Be Hearing
Review nixed in NYS custody battle, Minnesota mom’s complaints about trans daughter
BY ARTHUR S. LEONARD
In a Supreme Court session with several
consequential LGBTQ cases pending,
we learned on October 7 of two lawsuits
that will not being going in front of the
nation’s high court.
In Frank G. v. Joseph P. & Renee P.F. , the
Second Department of the New York State Appellate
Division upheld an Orange County Family
Court judge’s custody award of twin boys to
the former same-sex partner of the children’s
biological father, and the state’s highest bench,
the Court of Appeals, denied review.
The children’s biological mother, Renee, is
the former same-sex partner’s sister. Frank,
the biological father, moved with the children to
Florida without notifying Joseph, who enjoyed
a close bond with the children even though the
two men no longer lived together. Joseph sued
to be appointed a guardian of the children, at
a time before the Court of Appeals recognized
the parental status of same-sex partners.
After the Court of Appeals’ landmark 2016
decision in Brooke S.B. v. Elizabeth A.C.C. ,
which ruled that same-sex co-parents could be
recognized as having the same parental rights
and standing as biological or adoptive parents
in certain circumstances — even if they were
not married to the biological parent or had not
adopted the children — Joseph amended his
complaint to seek custody.
Orange County Family Court Judge Lori
Currier Woods decided that the children’s best
interest would be served by awarding custody
to Joseph and according visitation rights to
Frank. She did not fi nd that Frank was “unfi
t,” but instead placed both fathers on equal
standing and then considered which one would
provide the preferable home for the twins. Relying
on the Brooke S.B. decision, the Appellate
Division affi rmed Woods’ ruling. Frank tried to
appeal this ruling, arguing his 14th Amendment
due process rights were violated, but the
Court of Appeals refused to hear his appeal.
Pointing to cases where the US Supreme
Court has recognized as a fundamental right
the liberty interest of biological parents in the
care and raising of their children, Frank argued
his liberty interest was violated when he
was deprived of custody in favor of a co-parent
based on an analysis of the children’s best interest
without any fi nding he was unfi t. His
petition argued that his case had national signifi
cance and needed a Supreme Court ruling
because various state courts have disagreed
about how to handle parental custody claims
by unmarried same-sex partners of biological
or adoptive parents. Since the Supreme Court
is most likely to grant review in cases involving
constitutional questions where lower courts are
divided, Frank seemed likely to win review.
Frank’s likelihood of success was enhanced
because his petition was fi led by Gene Schaerr,
a former clerk of Chief Justice Warren Burger
and Justice Antonin Scalia and a prominent
anti-LGBTQ lawyer and partner in a Washington
fi rm that frequently litigates in the Supreme
Court. Several amicus briefs were fi led
in support of Frank’s petition, urging the high
court to reaffi rm the traditional doctrine that
biological parents who are not found to be unfi
t always have custodial preference over people
➤ NO SCOTUS REVIEW, continued on p.21
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