63 N.Y.2d 233 (1984)

In the Matter of the Adoption of Robert Paul P., Appellant. Jack M., Appellant; Frederick A. O. Schwarz, Corporation Counsel, Respondent.

Court of Appeals of the State of New York.

Decided October 16, 1984.

Attorney(s) appearing for the Case

Michael J. Lavery for appellants.

No appearance for respondent.

Abby R. Rubenfeld, Craig J. Davidson and M. Ricardo Dubriel for Lambda Legal Defense & Education Fund, Inc., amicus curiae.

Judges JONES, SIMONS and KAYE concur with Judge JASEN; Judge MEYER dissents and votes to reverse in a separate opinion in which Chief Judge COOKE concurs; Judge WACHTLER taking no part.


We are asked to decide whether it was error for Family Court to deny the petition of a 57-year-old male to adopt a 50-year-old male with whom he shares a homosexual relationship.

Appellants are two adult males who have resided together continuously for more than 25 years. The older of the two, who was 57 years of age when this proceeding was commenced, submitted a petition to adopt the younger, aged 50 at the time. The two share a homosexual relationship and desire an adoption for social, financial and emotional reasons.1 Following a hearing at which both parties to the prospective adoption testified, and upon receipt of a probation investigation that was favorable to the parties, Family Court denied the petition. That court concluded that the parties were attempting to utilize an adoption for the purposes properly served by marriage, wills and business contracts and that the parties lacked any semblance of a parent-child relationship.

The Appellate Division unanimously affirmed, without opinion, and granted leave to appeal to this court. We now affirm for the reasons that follow.

Our adoption statute embodies the fundamental social concept that the relationship of parent and child may be established by operation of law. (Matter of Upjohn, 304 N.Y. 366, 373.) Despite the absence of any blood ties, in the eyes of the law an adopted child becomes "the natural child of the adoptive parent" with all the attendant personal and proprietary incidents to that relationship. (Carpenter v Buffalo Gen. Elec. Co., 213 N.Y. 101, 108.) Indeed, the adoption laws of New York, as well as those of most of the States, reflect the general acceptance of the ancient principle of adoptio naturam imitatur — i.e., adoption imitates nature, which originated in Roman jurisprudence (Wadlington, Minimum Age Difference As A Requisite for Adoption, 1966 Duke LJ 392, 392-396), which, in turn, served as a guide for the development of adoption statutes in this country. (Howe, Adoption Practice, Issues and Laws 1958-1983, 17 Family LQ 173, 173-177; Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L Rev 566, 567; Huard, Law of Adoption: Ancient and Modern, 9 Vand L Rev 743, 748; Matter of Livingston, 151 App Div 12.)

In imitating nature, adoption in New York, as explicitly defined in section 110 of the Domestic Relations Law, is "the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent." (Emphasis supplied.) It is plainly not a quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship, be it heterosexual or homosexual. (See, e.g., Stevens v Halstead, 181 App Div 198.) Moreover, any such sexual intimacy is utterly repugnant to the relationship between child and parent in our society, and only a patently incongruous application of our adoption laws — wholly inconsistent with the underlying public policy of providing a parent-child relationship for the welfare of the child (Matter of Malpica-Orsini, 36 N.Y.2d 568, 571-572, app dsmd sub nom. Orsini v Blasi, 423 U.S. 1042; Matter of Upjohn, supra; Howe, op. cit., 17 Family LQ, at pp 176-179; Huard, op. cit., 9 Vand L Rev, at pp 748-749) — would permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child.

While the adoption of an adult has long been permitted under the Domestic Relations Law, there is no exception made in such adoptions to the expressed purpose of legally formalizing a parent-child relationship. Adoption laws in this State, first enacted in 1873, initially only provided for the "adoption of minor children by adult persons." (L 1873, ch 830.) As early as 1915, however, the statute was amended to allow adoption of "a person of the age of twenty-one years and upwards" (L 1915, ch 352) and presently the law simply provides that an unmarried adult or married adults together "may adopt another person" without any restriction on the age of the "adoptive child" or "adoptee". (Domestic Relations Law, §§ 110, 109, subd 1.) Despite these and other statutory changes since adoption came into existence in New York, the basic function of giving legal effect to a parent-child relationship has remained unaltered.

Indeed, although the statutory prerequisites may be less compelling than in the case of the adoption of a minor, an adult adoption must still be "in the best interests of the [adoptive] child" and "the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant" must still be investigated. (Domestic Relations Law, § 116, subds 2, 3, 4.) Neither the explicit statutory purpose nor criteria have been diluted for adult adoptions, and this court has no basis for undoing what the Legislature has left intact.

Moreover, deference to the narrow legislative purpose is especially warranted with adoption, a legal relationship unknown at common law. (Betz v Horr, 276 N.Y. 83, 86-87; Matter of Thorne, 155 N.Y. 140, 143.) It exists only by virtue of the legislative acts that authorize it. Although adoption was widely practiced by the Egyptians, Greeks and Romans, it was unknown in England until the Adoption of Children Act of 1926, more than 50 years subsequent to the enactment of adoption laws in New York. (See, generally, Huard, op. cit., 9 Vand L Rev 943; see, also, Matter of Clark, 87 Cal. 638, 641 — adoption was "unknown to the common law" and "repugnant to [its] principles".) Adoption in this State is "solely the creature of, and regulated by, statute law" (Matter of Eaton, 305 N.Y. 162, 165) and "`[t]he Legislature has supreme control of the subject'". (Carpenter v Buffalo Gen. Elec. Co., supra, at p 107, quoting Matter of Cook, 187 N.Y. 253, 260.) Consequently, because adoption is entirely statutory and is in derogation of common law, the legislative purposes and mandates must be strictly observed.2 (See Matter of Malpica-Orsini, supra, at p 570; Matter of Santacose, 271 App Div 11, 16; 2 NY Jur, Adoption, § 3.)

Here, where the appellants are living together in a homosexual relationship and where no incidents of a parent-child relationship are evidenced or even remotely within the parties' intentions, no fair interpretation of our adoption laws can permit a granting of the petition. Adoption is not a means of obtaining a legal status for a nonmarital sexual relationship — whether homosexual or heterosexual. Such would be a "cynical distortion of the function of adoption." (Matter of Adult Anonymous II, 88 A.D.2d 30, 38 [Sullivan, J. P., dissenting].) Nor is it a procedure by which to legitimize an emotional attachment, however sincere, but wholly devoid of the filial relationship that is fundamental to the concept of adoption.

While there are no special restrictions on adult adoptions under the provisions of the Domestic Relations Law, the Legislature could not have intended that the statute be employed "to arrive at an unreasonable or absurd result." (Williams v Williams, 23 N.Y.2d 592, 599.) Such would be the result if the Domestic Relations Law were interpreted to permit one lover, homosexual or heterosexual, to adopt the other and enjoy the sanction of the law on their feigned union as parent and child.

There are many reasons why one adult might wish to adopt another that would be entirely consistent with the basic nature of adoption, including the following: a childless individual might wish to perpetuate a family name; two individuals might develop a strong filial affection for one another; a stepparent might wish to adopt the spouse's adult children; or adoption may have been forgone, for whatever reason, at an earlier date. (See Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L Rev 566, at p 571, n 26, and p 578.) But where the relationship between the adult parties is utterly incompatible with the creation of a parent-child relationship between them, the adoption process is certainly not the proper vehicle by which to formalize their partnership in the eyes of the law. Indeed, it would be unreasonable and disingenuous for us to attribute a contrary intent to the Legislature.3

If the adoption laws are to be changed so as to permit sexual lovers, homosexual or heterosexual, to adopt one another for the purpose of giving a nonmatrimonial legal status to their relationship, or if a separate institution is to be established for the same purpose, it is for the Legislature, as a matter of State public policy, to do so. Absent any such recognition of that relationship coming from the Legislature, however, the courts ought not to create the same under the rubric of adoption.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

MEYER, J. (dissenting).

Having concluded in People v Onofre (51 N.Y.2d 476, 490) that government interference with a private consensual homosexual relationship was unconstitutional because it would not "do anything other than restrict individual conduct and impose a concept of private morality chosen by the State", the court now inconsistently refuses to "permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child." (Majority opn, at p 236.)

The history and background of the adoption laws is sufficiently spelled out by Justice Sidney H. Asch in Matter of Adult Anonymous II (88 A.D.2d 30) and Family Court Judge Leon Deutsch in Matter of Anonymous (106 Misc.2d 792) and need not be further developed here. I write, therefore, essentially to emphasize the extent to which, in my view, the majority misconceives the meaning and purpose of article 7 of the Domestic Relations Law.

Under that article the relationship of parent and child is not a condition precedent to adoption; it is rather the result of the adoption proceeding. This is clear from the provisions of sections 110 and 117. The second unnumbered paragraph of section 110 defines "adoption" as "the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person," (emphasis supplied) and section 117, which spells out the "effect of adoption," provides in the third unnumbered paragraph of subdivision 1 that, "The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other and the natural and adopted kindred of the adoptive parents or parent" (emphasis supplied).1 From those provisions and the statement in the opening sentence of section 110 that, "An adult unmarried person * * * may adopt another person", no other conclusion is possible than that the Legislature has not conditioned adult adoption upon there being a parent-child relationship, but rather has stated that relationship to be the result of adoption. Indeed, had it intended to impose limitations of age, consent of others, sexual orientation, or other such condition upon adult adoption, it could easily have done so.2

Nor will it do to argue, as did Justice Joseph P. Sullivan dissenting in Matter of Adult Anonymous II (88 AD2d, at p 38), that because the Legislature that provided for adoption of adults continued the proscription against homosexuality, it did not envision adoption as a means of formalizing a homosexual relationship. The wording of section 110 being sufficiently broad to permit such formalization once the prior criminal proscription has been declared unconstitutional, to deny it that effect is to ignore the rule that a court is "not at liberty to restrict by conjecture, or under the guise or pretext of interpretation, the meaning of" the language chosen by the Legislature (Department of Welfare v Siebel, 6 N.Y.2d 536, 543, app dsmd 361 U.S. 535; accord Allen v Minskoff, 38 N.Y.2d 506, 511). It is "incumbent upon the courts to give effect to legislation as it is written, and not as they or others might think it should be written" (People v Woman's Christian Assn., 56 A.D.2d 101, 104, on further appeal 59 A.D.2d 1005, affd 44 N.Y.2d 466; Lawrence Constr. Corp. v State of New York, 293 N.Y. 634, 639).

Contrary to the suggestion of the majority that the adoption statute must be strictly construed (majority opn, at p 238), it "has been most liberally and beneficently applied" (Matter of Malpica-Orsini, 36 N.Y.2d 568, 572, app dsmd sub nom. Orsini v Blasi, 423 U.S. 1042). True, Stevens v Halstead (181 App Div 198) held its use for the purpose of passing property from a 70-year-old physically infirm man to a married 47-year-old woman with whom he was living in an adulterous relationship to be improper. But that holding was predicated on the conception that it was "against public policy to admit a couple living in adultery to the relation of parent and child" and because "[t]his meretricious relationship, and the undue influence which imposed the will of defendant on decedent, condemn the adoption." (Id., at p 201.) Here, however, there is no suggestion of undue influence and the relationship, which by the present decision is excised from the adoption statute's broad wording, has, since the Onofre decision, been subject to no legal impediment. That it remains morally offensive to many cannot justify imposing upon the statute a limitation not imposed by the Legislature (People v Onofre, 51 NY2d, at p 490; Department of Welfare v Siebel, 6 NY2d, at p 543).

What leads to the majority's conclusion that the relationship of the parties "is utterly incompatible with the creation of a parent-child relationship between them" (at p 239) is that it involves a "nonmarital sexual relationship" (at p 238). But nothing in the statute requires an inquiry into or evaluation of the sexual habits of the parties to an adult adoption or the nature of the current relationship between them. It is enough that they are two adults who freely desire the legal status of parent and child. The more particularly is this so in light of the absence from the statute of any requirement that the adoptor be older than the adoptee, for that, if nothing else, belies the majority's concept that adoption under New York statute imitates nature, inexorably and in every last detail.

Under the statute "the relationship of parent and child, with all the personal and property rights incident to it, may be established, independently of blood ties, by operation of law" (Matter of Malpica-Orsini, 36 NY2d, at pp 571-572); existence of a parent-child relationship is not a condition of, but a result of, adoption. The motives which prompt the present application (see n 1 to majority opn) are in no way contrary to public policy; in the words of Mr. Justice Holmes, they are "perfectly proper" (Collamore v Learned, 171 Mass. 99, 100). Absent any contravention of public policy, we should be "concerned only with the clear, unqualified statutory authorization of adoption" (Bedinger v Graybill's Executor, 302 S.W.2d 594, 599 [Ky]; Matter of Berston, 296 Minn. 24, 27) and should, therefore, reverse the Appellate Division's order.

Order affirmed, with costs.


1. The parties' affidavit, attached to the petition, states the following reasons for the proposed adoption: "2. The two of us have lived together for a period of over 25 years. We consider ourselves to be a family, though this might not be true in the traditional sense. Though not the only reason for our petition, our present living arrangements, in a leased apartment, are not formalized and we fear the possibility of eviction; our financial and personal lives are entwined together and though it is not expected, we are concerned about the disposition of our estates upon death and lastly, though not least, we expect to live out our lives together and are concerned about the ability and right under the law for each of us to take care of the other should unexpected events occur. "3. Though the above reasons indicate financial, economic and practical considerations for our petition, not of any lesser extent and perhaps of more importance, are the many personal, emotional and sentimental reasons for which we present our petition. Simply stated we are a family and seek to formalize such."
2. It is true, as the dissent notes (dissenting opn, at p 241), that this court has stated in the past that "the adoption statute `has been most liberally and beneficently applied'" (Matter of Malpica-Orsini, 36 N.Y.2d 568, 572). However, a closer look at this court's opinion in that case reveals that the statute is thusly to be applied only "[i]n harmony with the legislative policy" which is the "fundamental social concept that the relationship of parent and child * * * may be established" (id., at pp 571-572). It is clear that we were addressing only the beneficent promotion of the "humanitarian principles" involved in "establishing a real home for a child" (id.) — not a liberal expansion of the underlying purposes and application of the adoption statute beyond that intended by the Legislature.
3. The dissent's reliance on People v Onofre (51 N.Y.2d 476) is misplaced. (Dissenting opn, at pp 239, 241, 241-242.) The issue in this case is not whether private consensual homosexual conduct is legally proscribable — this court has already answered that question in the negative (id.) and the decision today in no way affects or conflicts with that holding. The sole issue addressed today is whether adoption under the Domestic Relations Law is an appropriate means to legally formalize an indisputedly and entirely nonfilial relationship between sexual partners — regardless of whether their relationship is homosexual or heterosexual. The decision today in no way imposes or chooses a "concept of private morality" nor in any way judges the propriety or morality of the parties' "individual conduct".
1. Reference in the latter provision to "adoptive parent" and "adoptive child" does not require a contrary conclusion, for subdivision 1 of section 109 defines the former to "mean a person adopting" and the latter to "mean a person adopted."
2. (Cf. Cal Civ Code, § 227p, subd [a] ["Any adult person may adopt any other adult person younger than himself or herself"]; Conn Gen Stats Ann, § 45-67 ["Any person eighteen years of age or older may by written agreement with another person at least eighteen years of age but younger than himself"]; Mass Gen Laws Ann, ch 210, § 1 ["A person of full age may * * * adopt as his child another person younger than himself"]; Nev Rev Stats, § 127.190 ["any adult person may adopt any other adult younger than himself"]; see 1953 version of the Uniform Adoption Act, 9 ULA [Master ed], p 14; Wadlington, Minimum Age Difference as a Requisite For Adoption, 1966 Duke LJ 392, 404-406.)


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases