Single Parents, Beware Of The Ex

This is a terrifying case for single parents.

Congrats, Perez!  First, a big congratulations to celebrity gossip blogger Perez Hilton on the newest addition to his family, Mayte Amor, born via surrogacy. Hilton shared a message of gratitude, “Thank you to all the surrogates who give so selflessly and whose kindness is inspiring! There are still many states in America that, sadly, prohibit surrogacy and I hope to use my voice to advocate for making it legal across the country!” On behalf of hopeful future parents out there — thanks, Perez!

Now on to some concerning news.

America has made big changes recently in recognizing families in many forms. Two moms. Two dads. Sometimes even more than two people with parental rights. And courts have expanded the idea of parenthood to include people who turn to an egg donor, a sperm donor, a surrogate, or even all three. However, this ongoing case out of New York demonstrates that making the test to determine parenthood broader and fuzzier can have side effects. In this case, it resulted in a scary situation for parents who didn’t intend for an ex to suddenly demand parental rights.

Alexander Hamilton’s Great-Great Granddaughter Was Betrayed By An Ex-Girlfriend.  Circe Hamilton (yes, totally related to Alexander Hamilton!), is a New York City photographer. Kelly Dunn, a wealthy product developer, met Hamilton in New York.  They then dated for many years, lived together, and purchased property together, before splitting in 2010.  Hamilton had long desired for a child, and she ultimately applied to adopt internationally.  While Dunn was initially part of the discussion and process for Hamilton to adopt, Dunn never applied to be a parent through adoption.  After the break-up, Hamilton continued to pursue adoption on her own.  In 2011, Hamilton got the call that she had the chance to adopt a little boy from Ethiopia.  Hamilton flew to Africa and instantly fell in love with 18-month old Abush.

As a single mother, Hamilton frequently relied on her group of friends — including Dunn — for support and assistance. Hamilton and Dunn had remained close, and Dunn volunteered to watch Abush frequently.  Dunn even asked to be named godmother to Abush, and Hamilton agreed.

The Call.  Hamilton, who grew up in England, decided in the fall of 2015 to move back to England to be close to family and pursue photography opportunities there. With most of her possessions packed up and on their way to England, Dunn offered to watch Abush while Hamilton completed the last of her packing.  That’s when Hamilton got the call.  She was required to be in a Manhattan court in 90 minutes, with Abush’s passport.  She was being sued by Dunn for parental rights to her son.

Completely blindsided, Hamilton appeared in court and was forced to relinquish her son’s passport. She learned that Dunn was arguing that she had always been a parent to Abush, and was demanding that the law recognize her parental status. Hamilton was stuck in the United States, and not even allowed to leave the state of New York, while the case wound its way through the court system.

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Jerky Timing?  Although the timing looks especially cruel, to be fair, it was Dunn’s first opportunity to seek parental rights. Prior to that ill-timed call, New York law was clear that Dunn had no chance at parental rights of Hamilton’s son.  But on that very day, a New York court had just ruled in Brooke S.B., a very sympathetic case where a non-biological mother in same-sex relationship had been cut out of her child’s life. The court determined that a caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to seek custody and parental rights. (So sure, it makes sense in the Brooke context, but neutral principles of law can open a very wide and scary door.)

A Ruling Against The Ex. Finally, in April 2017, the judge ruled against Dunn, finding that the plan to become parents together had not “continued unabated.” The ruling meant that Hamilton could get Abush’s passport back. Not so fast, Ms. Hamilton. Dunn’s attorneys immediately secured an interim stay on the decision while they appealed.  That’s where the case currently stands today.

Single Parents Beware.  With all due respect for Dunn’s genuine feelings for the child, this is a terrifying case for single parents. It will make a single parent think twice about who cares for her child, and how close that person is allowed to get. It almost begs for a legal waiver for all caregivers (and godparents!) expressly stating that they will not seek parental rights. Moreover, a single parent should think carefully about whom she is in a relationship with when she even she starts thinking about becoming a parent.

For those interested in further discussion of the facts and analysis of this case, check out this lengthy article from The New Yorker, and keep an eye out for a CLE through the ABA organized by Christina Miller focused on this case and its myriad of potentially game-changing issues.


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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.