Is adoption an alternative for lesbians and gays seeking legally-sanctioned relationships?
When John and Craig met in an Upper East Side bar in September, 1980, it could have been another classical Manhattan tale of two tricks passing in the night. The pair had little in common. Craig Burns was blond, boyish, 23. He was between jobs, visiting friends in New York. John Eberhardt, 58, was a Fire Island pioneer, having hammered together scores of beach houses in Cherry Grove during the 1940s before constructing his own wedding cake of a mansion, The Belvedere.
Nonetheless, John and Craig did what mismatched people often do. They fell in love. The next week John invited Craig out to the island and, as Craig recalls, "I kinda never left." This past spring, months shy of their ninth anniversary, the couple went one step further to acknowledge their relationship; Craig Burns became Craig Eberhardt. In a judge's chambers in West Palm Beach, John legally adopted his lover. Craig became his son.
* * * *
Adoption is yet another alternative for gays and lesbians who seek legal recognition of their relationships. Many do it to ensure financial protection for lovers in the event of their death; others see it as the only same-sex union likely to be sanctioned by the law in this era.
But adoption is not a foolproof shelter against the bigotry of our legal system. In the early 1980s in New York State, gay adoptions caused a stir in the legal system, challenging the definition of adoption and provoking progressive decisions in two important cases: Adult Anonymous I and II.
In the latter, handled by Lambda Legal Defense Fund's William J. Thom and heard in 1982, a 32-year-old male petitioned to adopt a 43-year-old. Partial motivation was financial; the building where the pair lived was going co-op and the landlord was evicting those not on the lease. Initially dismissed by Family Court, City of New York, the petitioners appealed the case to the State Supreme Court Appellate Division. The decision was reversed and petition granted, since the Family Court decision was based on its narrow interpretation of the nature of family, not the adoption statute itself, which expresses no limitations. "The 'nuclear family' arrangement is no longer the only model of family life in America," the decision challenged.
In addition, constitutional law was cited, where homosexual relations in private are protected in New York under the right to privacy. Through some circuitous logic, it was proposed that a petition for a father-son adoption by two homosexual men raised the spectre of technical incest. However, it was ruled that "incest in general involves blood relatives." More facetious was the subsequent observation: "And, of course, the taboo against incest, grounded in eugenics, has little application in a relationship which can hardly result in offspring."
However, these legal strides were to be reversed two years later. The New York State Court of Appeals, filtering decisions through a screen of homophobia, effectively put a halt to overtly homosexual same-sex adoptions by lovers. In the Matter of the Adoption of Robert Paul P. in 1984, a 57-year-old man was denied his petition to adopt his 50-year-old lover, although they had lived together continuously for 25 years.
Michael Lavery, a New York City lawyer and co-founder of the Lambda Legal Defense Fund, handled the case. Lavery, a consistent fighter for gay and lesbian rights, has argued cases for Dignity, the gay Catholic group, and Integrity, the Episcopal sect. He acknowledges the misstep made by the two lovers: they did not attempt to hide the sexual nature of their relationship. The legal gay-bashing continued; the court questioned the validity of adoption as a way to halt an eviction. "It is nothing more than a cynical distortion of the function of adoption."
Most damning of all is this paragraph: "Adoption was never intended as a haven where parties might shelter emotional relationships for which no statutory provision has been made. If the homosexual relationship is to receive legal sanction as a family unit, such recognition must come from the legislature, and not the courts through the guise of adoption."
* * * *
John and Craig were inseparable during the first three months together. In December, the pair were visiting John's cousin, who is also gay, in California. Walking through the celebrated Forest Lawn Cemetery one sunny afternoon, observing the gaudy sculpture and meticulous landscaping, John and Craig came upon a small stone bench. Carved into the decoration was an Irish quotation about true love lasting forever. The lovers impulsively joined hands and recited the quote. "From then on, we decided we were a married couple," Craig said.
But both knew that a two-minute wedding in a cemetery held no legal weight. And as the years passed, and John and Craig grew closer, they began thinking about events that could separate them. The question of a legal relationship became more insistent this past year. A friend of the couple, a septuagenarian psychologist from Manhattan had successfully adopted his 54-year-old lover in order to pass on his magnificent Riverside Drive apartment after he passed on. At the age of 65, John was still hardy and working on constant improvements to The Belvedere. But the issue of a successor loomed, he recalled. Who would look after his 26-room palace?
"For one thing, passing on this empire" — Eberhardt assumes a mock hauteur to his voice — "it takes the right kind of person. I don't know who could do it, except for someone who is talented and capable. My older brother or sister just couldn't manage this, what with the milieu of the town, this gay world." Craig was the only choice.
Craig's concerns about a legal relationship with John were just as keen. "In the case of catastrophic illness, I would be John's next of kin and would have the say about his care and well-being, as opposed to a family throwing me out on the street and putting him in a nursing home." In addition, the pair learned that real estate passed on from father to son is taxed differently than it would be for a commercial transaction. John and Craig were amassing a list of basic rights afforded heterosexuals and denied homosexuals. After several talks with their attorney, who is gay, the two agreed to file papers for adoption.
John recalls the day he and Craig went to the courthouse for their petition, accompanied by their attorney. Amongst rows of mothers and fathers with their small children, John and Craig sat: a smiling gray-haired man of 67, with twinkling mischievous eyes, and a solid, big-limbed blond hunk of 32. Once inside the judge's chambers, Craig recalls, "I told the judge our relationship is like father and son." The matter of ownership of The Belvedere was sidestepped. "They seem to frown on people [petitioning adoption] for financial reasons. They prefer to have people doing it for emotional reasons." The issue of homosexuality was not broached.
Craig required written consent from his parents to agree to the adoption. "They knew that it was, in no way, a slighting of them. I still consider them my parents and our relationship is just as good as it's ever been. This was just a way for John and I becoming legally married like my sister and her husband." In deference to his folks, Craig Richard Burns legally changed his name to Craig Burns Eberhardt. The Burns knew of their son's homosexuality; he had come out to them at age 18 as a prelude to the announcement that he had fallen in love with a man and was moving in with him. The relationship lasted three months.
The final legal step in adoption is the destruction of Craig's original birth certificate, which resides in Chicago. Another one will be issued naming John as his legal parent. Ultimately, there will be no legal record of Craig ever being related to the Burns family.
* * * *
In the case of Robert Paul P., the court avails itself of the same self-reflexive homophobia that was employed in the Hardwick sodomy decision back in 1986. Observing that legislation did not include homosexuals in adoption laws any time since the laws were enacted in 1873, the court questions why the status quo should be upset. Another absurd leap of logic observes that since New York sodomy laws were overturned just in 1980, it seems unlikely that the same legislature would want homosexual relationships themselves acknowledged through adoption. Another decision went so far as to term the notion of sexual intimacy between adopter and adoptee as "utterly repugnant."
In most cases, the court expresses itself carefully in gay or lesbian issues. "Court people are sophisticated enough not to be overt," Lavery said. "The less overt are the ones most difficult to pin down and accuse of anti-gay decisions. No one will say, ‘We're not going to allow this adoption because they're a couple of fags.’”
But read between the lines. The court criticized the men for looking to adoption as a way to legally share a lease and prevent an impending eviction. The legal jargon was merely a smokescreen; once again the court was enacting laws that refused to acknowledge a same-sex relationship. In fact, Lavery points out, "the concept of adopting children is a product of the post-Victorian times." Beginning during the ancient Roman era, adoption was a legal tool for economic, political and social objectives, especially when a wealthy man did not have a natural heir.
But the issue of gay adoption prompts mixed reactions. Paula Ettelbrick, Lambda's legal director since 1985, considers it a flawed strategy, and a compromise to receiving basic gay and lesbian rights. "The effort of our community should be to obtain recognition for our relationships as they are, not subverting nor distorting them into parent-child relationships."
Lavery also has a diplomatic party line. Quietly, he suggests that same-sex couples who maintained the parent-child charade have had their petitions for adoption granted. "One should not assume that after the 1986 Court of Appeals decision, there have been no gay adoptions." After all, he points out, when there is no hitch to the proceedings, the request for adoption is kept confidential. There is no record of successful homosexual adoptions. It is only when the initial petition is denied and the decision appealed that the case finds its way into public record.
Lavery recalls one case where a successful professor in his mid-40s asked to adopt a man in his mid-20s after they had lived together five years. The older man presented himself as advisor and mentor; a role model that the younger man lacked as a child. When challenged as to whether their relationship was actually of a sexual nature, the younger man grimaced and told the court, "No way!" The petition was approved.
He offers an unsettling clarification: "If you were rich and powerful, [lover adoptions] probably could be done," but not for the average guy on he street. Lavery alludes to an internationally- known operatic composer who adopted his young lover, as well as a successful entrepreneur from Chicago who followed suit.
The recent State Court of Appeals case involving Miguel Braschi was a landmark case insofar as acknowledging gay and lesbian relationships. Braschi was awarded his deceased lover's lease after their 10-year union, but this decision will have no impact on the adoption issue, Lavery offered. The courts pulled their punch, he added, in extending the ruling to rent-controlled apartments, not rent-stabilized buildings. Gays and lesbians will still find the need to petition for adoption to maintain cohabitation or property ownership.
The gay psychologist who adopted his younger lover agrees on that count. The man, who requested anonymity, suggested that a real estate pressure group influenced the legislature in the Braschi case. "They've stopped people from using adoption as a way around the problem of losing your apartment if your name is not in the lease. Adoption should be a freedom."
When his lover of 25 years died, the man was left alone in the six-room penthouse apartment on Riverside Drive. Eventually he met his second lover, who moved in six months later. A rash of abusive letters from the man's landlord began to come, insisting that the lover move out since he was not on the lease. "They persecuted us for three years. That was the trick in those days," he said. "They thought the only way to get me out of the apartment was to separate me from my lover. We said 'fuck you' and went through the channels of adoption."
Officially, Lavery will not handle an adoption case where the same-sex petitioners are involved in a sexual relationship. The case is doomed, he insists. NMostcases I handle are done pro bono. It's not worth the time and effort if the case is denied without any advancement." The strategy of gay adoption "is not a winnable battle at this time," he added "A gay sexual relationship will not meet the legal definition of adoption."
"It's necessary to convince heterosexual judges, as well as other gays, that two gay men can have a relationship that is not necessarily sexual." The unspoken message here is: keep a lid on intimacy in court and the petition will sail through. Acknowledge your lover relationship and prepare for rejection. What advice does Lavery give his clients in this situation?
"There's a thin line between deception and downplaying," Lavery says. "If [the partners] can't be frank when the question comes up, it could be disastrous."
Ettelbrick points out alternatives to adoption, adding, "There are ways that we can take care of our vulnerabilities under the law." These include wills, power of attorney designation and conservatorships.
Lavery is guarded in his appraisal of the future of gay legal rights and the recognition of homosexual unions. “We have some ways to go; we are still too conveniently overlooked, unless somebody is waving a sign in your face, saying, ‘What about us?’”
* * * *
John and Craig are sitting in the breakfast nook off the kitchen of The Belvedere, taking a breather from last-minute renovations. By November 1, they will close up the castle and head to Florida to run another guest house called Villa Fontana. Craig ponders the longevity of their relationship, and feels it stems, in part, from a respect for fidelity during sexually liberated days. "We've always been just a monogamous couple," he explained, "and I think that's why it's worked for us this long. We made a commitment to each other, and this year we reinforced the commitment to each other."
— Jay Blotcher, OutWeek Magazine No. 18, October 22, 1989, p. 36.