The week before Labor Day, 2016, Circe Hamilton, a freelance photographer in her mid-forties, was preparing to move back to the U.K., after twenty years in New York. She had begun to think of the city as an obstruction; she had recently struggled to make a living, and felt that she was depriving her young son of a gentler, slower childhood in west London, with access to English relatives, the National Health Service, and muddy playgrounds under gray skies. Hamilton is an American citizen—and, she recently learned, a descendant of Alexander Hamilton—but she grew up in England, sounds English, and has a British passport. When her friend Valentina Rice hosted a farewell dinner for her, on August 30th, Hamilton was surrounded by expatriate British women with careers in the media and in fashion. The guests ate blueberry polenta cake and said goodbye to someone they understood to be a single mother.
Hamilton’s son, Abush, was born in Ethiopia, and was adopted by Circe in August, 2011, when he was a toddler. A year and a half earlier, Hamilton had broken up with Kelly Gunn, the woman who had been her romantic partner for several years. In their final year together, Hamilton and Gunn had begun the process of an overseas adoption. After the separation, Hamilton continued to pursue the process. The two women remained in close contact, and a year after Abush arrived Gunn became his godmother. Despite some friction between the women about the meaning of that role, Gunn and Abush developed a strong bond. He often stayed with her overnight; he loved her dogs.
On the morning of the farewell dinner, Hamilton had walked with Abush from her home, in the West Village, to Gunn’s apartment, on Sullivan Street, a block south of Washington Square Park. The apartment is modern, with glossy dark floors and a wall of windows. Gunn had become wealthy by supplying Apple with display fixtures for its stores; she had run her own design company, and had been a partner in another. She owned property in Los Angeles, and a summer house on Fire Island. She had offered to take Abush to the beach for a few nights while Hamilton finished packing. Hamilton would join them on Thursday, September 1st, and then bring Abush back to New York before flying with him to London, on Saturday night.
Hamilton is tall, with long hair and a long, pale face. Gunn, who is fifty-three, has cropped graying hair and wears round white-rimmed glasses on a round face; she prefers adventurously billowing clothes made of dark fabrics. Compared with Hamilton, who is unimpressed by displays of emotion, Gunn is happier to use the language of therapy, and is readier to share her feelings. Disorder can agitate her—she once sent an employee to her home to deal with an insect—and on the day of Hamilton’s farewell party Gunn was upset about a blocked toilet. She had mentioned it in a text message, but was repelled when Hamilton carried her own plunger across town and into Gunn’s apartment. Hamilton later recalled that, after she dropped off Abush with Gunn, she thought that her ex seemed “more panicked than usual.”
The next day, Wednesday, a shipping company collected Hamilton’s belongings. She had what she thought would be her final photo shoot in New York: a portrait of Emma Forbes, a British TV presenter, for Hello! Gunn later sent her pictures of Abush having fun at the beach.
At one o’clock on Thursday, Hamilton was at home cleaning, expecting to leave for Fire Island in the evening, when she got a call from a woman who introduced herself as Nancy Chemtob. A New York family and matrimonial lawyer, Chemtob founded her own firm in her twenties; in the two and a half decades since, she has represented such clients as Bobby Flay, Star Jones, and Diandra Douglas, the ex-wife of Michael Douglas, in divorce proceedings. Her style is amused and unsentimental, and she has a strong Long Island accent. (Today, when Hamilton and Chemtob refer to each other, they use inexpert, mocking approximations of the other’s accent.)
Chemtob told Hamilton that she represented Kelly Gunn. Hamilton only half-registered what came next. Chemtob recalls telling Hamilton that Gunn had just asked a New York court to recognize her as one of Abush’s parents and award her joint legal and physical custody. As an interim measure, Gunn was seeking a restraining order that would stop Hamilton from taking him out of the country. Chemtob told Hamilton that, at 2:30 p.m., she must appear before a matrimonial judge on Centre Street. She should bring Abush’s American and British passports.
Hamilton began to shake. “I fell apart,” she said recently. (Chemtob, recalling Hamilton’s shock, said, “She had no clue.”) Hamilton changed, got in a taxi, and called Valentina Rice. Rice began asking friends to recommend lawyers, and one of them spoke to a family-law specialist, who said that Hamilton should “get the hell out of there.” Without legal representation, she was “walking into an ambush.” Rice relayed this advice, but Hamilton, she told me, “felt she had to go, and she didn’t have her son.”
In the courtroom, Gunn and Hamilton didn’t speak to each other. “It was an out-of-body experience,” Hamilton recalled. “I thought I was in a really weird play: ‘Where am I, and how did I end up here?’ ”
Chemtob told the judge that Gunn was in a “co-parenting relationship where the child one hundred per cent believes, and knows, that he has two mothers.” Gunn and Hamilton had raised Abush “as both parents equally.” She acknowledged that Abush usually called Kelly Gunn by her first name—truncated to “Kee”—but only because Gunn and Hamilton had agreed that “ ‘Ma’ and ‘Mommy’ would be confusing.” Hamilton was a “flight risk,” Chemtob said, and Gunn had become “very concerned about the welfare of the child.”
The judge invited Hamilton to speak. “I have no idea why I was brought into the courtroom,” she said. “I am the sole parent.”
The judge allowed Gunn’s petition to progress, and Hamilton relinquished Abush’s passports. Leaving the courtroom, she briefly embraced Gunn, who was weeping, and whispered, “I’m so sorry.” Hamilton later told me, “I did feel sorry for her. It was ‘Why do you have to do this?’ ” Hamilton then cancelled her flight, reënrolled Abush in school, and hired a lawyer.
Gunn v. Hamilton—an inquiry into whether Abush had two parents or one—began the following week, and was still running in the new year. The proceedings, which exhumed hundreds of e-mails of love and regret, became an intimate history of a New York romance and its aftermath: a study of what counts as splitting up, what counts as a family, and, in a quiet but stubborn subtext, whether the ability to pay for good dentistry enhances a legal claim to be something more than a godmother.
The case was the first of its kind in the city. “It’s as if you gave me the keys to your apartment and, suddenly, I’m saying, ‘The apartment is mine,’ ” Hamilton told me, bleakly, last fall. “What the fuck? Where does it end?” Her life had been put on hold, and her possessions were stuck in a shipping warehouse in New Jersey. Abush had returned to school; Hamilton couldn’t take him out of state without permission. The court had allotted Gunn time with Abush on Sundays and on Thursday afternoons.
Several times a week for months, Hamilton and Gunn sat a few feet from each other in a bright, shabby courtroom, at 80 Centre Street. A sign on the wall noted that “loud and angry words generally indicate a weak argument,” but the white noise of the city, through open windows, risked drowning out any form of speech gentler than a reprimand. Abush was not in the courtroom, but visitors in the public seats sometimes glimpsed his image when attorneys looked at e-mail printouts with photo attachments: a smiling boy with big eyes and a high forehead, playing with a dog or being held in the air.
If Gunn had filed her petition even a few days earlier, it might well have been quickly dismissed, and Abush would have spent Christmas in Oxfordshire. But Gunn came to court just after New York had expanded the definition of who counts as a parent. On September 8th, when Judge Frank Nervo began hearing the case, he understood—as did the half-dozen attorneys in front of him, and the wider community of family lawyers—that Gunn’s petition would help set the limits of that expansion.
If Gunn won the case, this would create a striking precedent. Her supporters would laud the court for having restrained a woman who, with blithe unilateralism, had attempted to put an ocean between a small boy and one of his mothers. Supporters of Hamilton would see presumption rewarded; to them, a Gunn victory would suggest that legal chutzpah, and the funds to pay for it, could convert the desire to be a parent into the fact of being one. In New York City, in particular, where improvised extended families are commonplace, such a ruling would risk emboldening people who, having been invited into the lives of single parents, then object to being asked to leave: neighbors, babysitters, childless friends, siblings, flings.
“It’s ‘Kramer vs. Kramer’ 2016,” Nancy Chemtob told me, over a drink, in October. “It’s wild.” She had the air of a morning-news anchor after a few cups of coffee. The litigation was in its second month. Chemtob hadn’t taken a day off since the summer. In court, she could be oddly playful. Several times, after fractious exchanges between her and Hamilton’s lead attorney, Bonnie Rabin, of Cohen Rabin Stine Schumann, she asked me, in mock-exhaustion, “Do you want to take over?” Chemtob’s informal style sometimes surprised Hamilton’s lawyers, who maintained a more scholarly air. One of Rabin’s colleagues told me that she’d never before seen the phrase “the bun was in the oven” in a legal memo. During the proceedings, Rabin, whose firm frequently handles L.G.B.T. cases, often struck a pose of speechless astonishment at what she was obliged to hear from the other side.
By the time Chemtob met with me, Gunn had spent eleven days on the witness stand. Chemtob recalled a recent conference in Judge Nervo’s chambers, in which he addressed both sets of lawyers and protested that the slow-moving case was creating a backlog. “He was really sweet,” she said. “He was ‘Look, I’d love to be on the front page of the Law Journal, but I’d also love this case to be over. Why don’t we, instead of making law, just see how we can get both to settle?’ ” But under New York law there’s no legal middle ground between being a parent and not being one. Neither party was likely to settle, and, whatever the Judge’s ruling, an appeal was inevitable. Chemtob, confident in her case and aware of Gunn’s financial advantage, had repeatedly urged Rabin to “throw in the towel.”
Chemtob mentioned a recent client, a financier who had impregnated a woman he met on Ashley Madison, a Web site for people seeking extramarital affairs; he did not want to support their child. Boys in fourth grade, Chemtob said, should be taught that “if you ever have sex you need to flush the condom down the toilet.” She also recalled how she took Gunn’s case. An acquaintance, Jane Aronson—a pediatrician who calls herself the Orphan Doctor—had contacted her. Aronson’s expertise, which has drawn her into friendships with Angelina Jolie and Hugh Jackman, includes the medical evaluation, from afar, of overseas children who are being considered for adoption in America. A few years ago, Aronson sought advice from Chemtob when she separated from her civil partner, a woman with whom she had adopted two sons; Aronson secured joint custody.
In late August, Aronson was sitting with Gunn in Christopher Park, outside the Stonewall Inn. She called Chemtob and handed Gunn the phone. “She sounded like a nut job,” Chemtob recalled. To the extent that she could follow Gunn’s scattered account—years of co-parenting; a looming flight to London—it seemed clear that she was legally unprotected. “The law’s one hundred per cent against you,” Chemtob told her. “You have absolutely no rights.” (Gunn recalls that Chemtob used a disquieting phrase: “legal stranger.”) Nevertheless, she suggested that Gunn make an appointment: “Let’s see what we can do.” Gunn told me that she had approached Chemtob, at Aronson’s urging, hoping merely that “a strong letter” might compel Hamilton to “talk about this.”
When Gunn came to Chemtob’s office, weeping, on August 24th, accompanied by her sister, Jennifer, Chemtob was able to share some remarkably encouraging news. She had just read up on an ongoing case, Brooke S.B. v. Elizabeth A.C.C., which was being closely watched by L.G.B.T. legal activists, but which had barely registered in Chemtob’s midtown firm. (Describing her daily routine, Chemtob said, “I confess that I have to read the Post first.”) The litigation, involving two women from western New York who were formerly in a relationship, and a boy who turned seven last year, was about to be decided by the Court of Appeals in Albany. Oral arguments had been heard in June. Chemtob explained that, if the petitioner in Brooke S.B. won, the precedent might make Gunn something more than a legal stranger. If the case went the other way, Gunn’s litigation could take Brooke S.B.’s place as a trailblazer. “Nancy made me feel confident,” Gunn told me. She recalled asking Jennifer, “Am I doing this?” Jennifer replied, “You’re doing this.”
Chemtob recommended filing a petition before Hamilton flew to London. She also suggested that Gunn wear contact lenses in place of her severe white glasses—advice that Gunn ignored. (Chemtob said to me, “I always tell moms to dress like moms, dads to dress like dads.”) An hour after the meeting, Gunn went to a West Village playground, where she hosted a farewell pizza party for Abush and some of his friends.
Americans are in unusual agreement about a parent’s right to parent. According to Chris Gottlieb, a law professor at N.Y.U., who co-directs a family-law clinic there, this view “has stood the test of time, and couldn’t be more essential to our democratic way of thinking.” Gottlieb worked on an amicus brief in the Brooke S.B. case. On the issue of parental rights, she said, “I, as a progressive, agree with people whom I wouldn’t agree with on almost anything.” She explained, “We agree on this—you have the right to raise your kid in ways that I fundamentally disagree with. This right really has been understood as an on-off switch. If you’re a parent, you get to make all the critical decisions: what religion your child is raised in, where they live, whether they can stay out until eleven and smoke marijuana.”
So when the definition of “parent” becomes uncertain, it creates turmoil in the law. “The thing about parental rights is that you cannot give them to one person without taking them away from somebody else, unless it’s with that person’s consent,” Gottlieb said. “That’s unlike other rights. Most progressives would agree with me that you can give L.G.B.T. people the right to marry without taking anything away from a straight person. That’s not true with this. When you give rights to Brooke B., it’s at the expense of Elizabeth C.”
New York’s statutes describe the obligations and entitlements of a parent, but they don’t define what a parent is. That definition derives from case law. In 1991, in a ruling in Alison D. v. Virginia M., a case involving an estranged lesbian couple and a child, the Court of Appeals opted for a definition with “bright line” clarity. A parent was either a biological parent or an adoptive parent; there were no other kinds. Lawyers in this field warn of “opening the floodgates”—an uncontrolled flow of dubious, would-be parents. Alison D. kept the gates shut, so that a biological mother wouldn’t find, say, that she had accidentally given away partial custody of her child to a worthless ex-boyfriend. But many saw the decision as discriminatory against same-sex couples, who can choose to raise a child together but can’t share the act of producing one. Judge Judith Kaye, in a dissent that has since been celebrated, noted that millions of American children had been born into families with a gay or lesbian parent; the court’s decision would restrict the ability of these children to “maintain bonds that may be crucial to their development.”
Starting in the mid-nineties, some U.S. states began recognizing a new legal category: the de-facto parent. This usually defined someone who had been given permission, by a legal parent, to share parental duties; who had lived with, and bonded with, a child; and who had assumed some of the financial burdens of parenthood. This person would not necessarily be granted full parental rights but would at least have standing to argue, in the face of a legal parent’s objection, that a child’s best interests would be served by a continued relationship.
New York couldn’t easily follow suit. Meg Canby, a matrimonial attorney at Blank Rome, a large law firm, told me that Alison D. was a “terrible ruling that had the imprimatur of precedent, leaving the state with a higher bar.” In 1995, the state started allowing unmarried people—including same-sex partners—to become second parents through adoption. In Canby’s view, this was “a salve on the wounds of Alison D.,” but it wasn’t equality: most heterosexual parents didn’t have to get around this bureaucratic obstacle.
Over the years, the Alison D. rule was often challenged, and was sometimes bent a little. In 2006, the Court of Appeals decided that a man who had behaved as a child’s father and was thought by the child to be a father—what another jurisdiction would call a de-facto parent—couldn’t evade paying child support by proving that he wasn’t in fact the biological father. In 2010, Bonnie Rabin represented a lesbian client who secured standing as a non-biological, non-adoptive parent, although on the narrow ground that she and her ex had entered a civil partnership in Vermont. Yet to the consternation of many Alison D. stuck, even after New York enacted same-sex marriage, in 2011. Meg Canby said that lawyers like her were “waiting and praying” for a case that looked something like Brooke S.B.
In 2015, Canby spoke on a panel about family-law issues affecting gay clients. She recalled that, afterward, Brett Figlewski, of LeGal, the L.G.B.T. bar association of Greater New York, “chased me down the street and got me into a Starbucks, and said, ‘Meg, I think we’ve got the case.’ ” Canby went on, “I sat with him, reading the trial, turning over the pages, looking at the facts, and just saying, ‘This could be the one.’ ”
The women at the center of the case, Brooke Barone and Elizabeth Chapman, grew up near Jamestown, southwest of Buffalo, and began a relationship in 2006. After Chapman became pregnant, through a donor, she and Barone had a baby shower. Barone cut the infant’s umbilical cord. The child took Barone’s last name. An announcement in the Jamestown Post-Journal named two mothers and four grandparents. The couple broke up in 2010. Barone, now living a few miles away, continued to provide financial support and to spend regular time with the child, who knew her as “Mama B.” When Chapman married another woman, Barone attended the wedding. But, in 2013, Chapman denied Barone further access to the child.
Barone, then aged thirty-one, went to family court in Chautauqua County. A judge was sympathetic, calling the circumstances “very disturbing,” but said that the law gave her no opportunity to intervene. (The decision, Barone told me in a phone interview, caused her attorney to cry.) In an unsuccessful appeal, Barone drew a contrast between her legal effort and more usual family-court cases—the kind that, as Meg Canby put it, involve “the mothers of children trying to drag fathers, kicking and screaming, to take responsibility for their kids, to see them, participate in their lives, to pay for them.” Canby went on, “Brooke is begging to come in and do that—and she’s shown the door. There’s just a fundamental unfairness.”
In September, 2015, the Court of Appeals agreed to review the case. For those who hoped to see Alison D. overturned, the promise of Brooke S.B. derived in part from the fact that it involved, as Canby put it, “unsophisticated people from a rural small community.” A more typical litigant would live in the city, be “very connected to the L.G.B.T.-rights community,” and be aware that adoption was the only way for an unmarried same-sex partner in New York to have unquestioned parental rights. Barone’s misconceived certainty about being a mother was a legal asset. Blank Rome joined with Susan Sommer, from Lambda Legal, a civil-rights nonprofit. By last June, when Sommer delivered oral arguments, Barone hadn’t seen the boy she considered her son for three years—except by accident, in the supermarket.
On August 30th, the day that Hamilton dropped Abush off at Sullivan Street, the Court of Appeals published its decision; Barone did have standing as a parent. Judge Sheila Abdus-Salaam wrote that the Alison D. standard was “unworkable when applied to increasingly varied familial relationships.” In circumstances like Barone’s, Abdus-Salaam wrote, what should matter is a plan to parent—so that “where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.” (In April, Abdus-Salaam was found dead in the Hudson River, an apparent suicide.)
The Court of Appeals stopped short of establishing a de-facto rule for New York. The new rule would apply quite narrowly, in cases in which the evidence allowed a judge to feel confident about what a couple had been thinking before a child arrived. The rule would not apply when a child (or a pregnancy) predated a relationship. A case like that, the court wrote, was “a matter left for another day.” The Times’ editorial board described the decision, in a headline, as “an overdue victory for gay parents and their children.” In October, Barone began seeing her son again.
Alison D. was gone. The floodgates had not been opened, but they were less guarded. Soon after the Brooke ruling, a Long Island courtroom began to consider whether a ten-year-old boy, born into a Bay Shore ménage involving two women and a man, might be the state’s first child to have three legal parents. Chemtob called Gunn, who was on her way to Fire Island with Abush. “It’s the craziest thing,” she recalls saying. “Brooke was just decided in your favor!” (Chemtob told me that the courts “would have thrown me out” if she’d filed two days earlier.) The next day, Gunn left Abush in Cherry Grove with friends he knew well, and she caught a ferry. In the rain, feeling sick with anxiety, she made her way to Centre Street.
During the trial, Hamilton and Gunn sat behind their lawyers. Hamilton usually held in her lap a black cardboard box containing photographs of Abush. Gunn began each morning by turning her chair slightly, making it easier to keep her back to Hamilton.
On September 8th, the first day that Gunn and Hamilton met in front of Judge Nervo, Rabin argued that the petition should be dismissed, in part because Chemtob had supported it with untruths, including the idea that Gunn referred to Abush as her son. (Rabin later answered a question of mine about Chemtob’s strategy by saying that some lawyers “throw everything against the wall and hope that it sticks.”) Nervo demurred; the case began.
“ ‘Parent’ is a word no different—and I hate to say it, Your Honor—than a word like ‘God,’ or a word like ‘love,’ ” Chemtob said. “It’s a word that you can’t really define. But when you talk about God, love, or parent, it elicits emotion. It’s a feeling that you can’t explain. You could be in a church or a synagogue and everybody believes in God. But what’s God? What’s love? You know it when it’s there. That’s what a parent is.”
Rabin acknowledged that, while Hamilton and Gunn were a couple, they had made “a joint plan” to adopt. But that plan “was terminated, aborted, extinguished—clearly—when the parties separated.” She went on, “You can encourage a loving relationship. You can encourage time together. You can encourage someone to support you, and I mean emotionally. That doesn’t encourage them to be a parent.” Hamilton had valued Gunn—as a godmother, Rabin said. “But Ms. Gunn wanted more. Ms. Gunn doesn’t get to have more. That’s not the way the world works.”
On September 12th, Gunn took the witness stand and declared that Abush was her son.
“Objection,” Rabin said.
On a morning last December when the case had paused, Gunn and her attorney were drinking coffee in Soho House, a members’ club in the meatpacking district. Gunn was wearing a long-sleeved shirt that hid a line of tattooed paw prints near her left elbow. The tattoos, sometimes visible in court, commemorated the death of a pet Chihuahua. I asked Gunn about another design, half-visible under the watch on her right wrist, where, in 2012, she had tattooed Abush’s name, in the Ethiopian script. “Whenever we take photos with my arm around him, it’s there,” Gunn told me. She had a smiling, earnest manner. “I say, ‘Even when we’re not together, I look at this and you’re with me.’ ”
The daughter of a firefighter, Gunn grew up in Queens and left home at seventeen. She said that she got “a little lost in the cracks for a few years” before going to college, in the Midwest. She returned to New York permanently in her thirties, and only fully reconnected with her parents and her sister a decade ago. She has a brother, who has children, but who is not on good terms with the family.
Gunn and Hamilton’s relationship began in 2004, after they met at a Valentine’s Day party. Gunn was thirty-nine, Hamilton thirty-one. They moved in together in 2007, and bought the Sullivan Street apartment. By then, Gunn had discovered her commercial skills. She worked for a firm that supplied Apple Stores with large printed graphics; she also founded her own company, Shasty, to make acrylic signs. She was often away from New York. In 2012, Gunn earned three million dollars.
Hamilton became a part-time office manager at Shasty. She still had a career as a photographer: in addition to magazine and corporate work, she had a sideline, which had grown out of a personal art project; she made commissioned portraits of women who, often for therapeutic, confidence-building reasons, wished to be photographed unclothed for the first time.
Gunn told me that, in the winter of 2007, “I asked Circe to marry me.” This was before same-sex marriage was legal in New York. She bought two diamond rings, and gave one to Hamilton. Gunn recalled the moment as awkward. “Her own parents got divorced—she’s afraid of it,” Gunn said. “She laughed and got really nervous and uncomfortable. Like, ‘Oh, gosh.’ ” (Hamilton recalls the ring, and other gifts of jewelry, but told me that she didn’t recognize the moment as a proposal, and never thought of herself as being engaged.) Gunn said that the episode illustrated Hamilton’s emotional evasiveness: “She would say, ‘I know I don’t say “I love you” that often.’ Something happens to her mouth, she can’t get the words out. So I take her actions as an implication of her feelings.”
They had started talking about adoption. Hamilton took the lead in that conversation, and in the process that followed. “Circe needed this so badly,” Gunn told me. “I had a big identity, a big job. And, without getting too binary, I wanted this for my partner, you know.” In the fall of 2007, they attended an event for would-be adoptive parents at Rutgers, and Jane Aronson was one of the speakers; shortly afterward, they had a consultation with her.
Hamilton looked into applying for an overseas adoption, feeling that the process would be more predictable, and less fraught, than a domestic one. She was drawn to an agency that encouraged ongoing contact between adopted children and their birth families. In 2009, the couple applied for an adoption from either Ethiopia or Nepal. This required subterfuge. No country, in the shrinking category of countries allowing foreign adoptions, welcomed applications from same-sex couples. Hamilton presented herself as straight and unmarried; she even invented a boyfriend. The two women discussed initiating a second-parent adoption once a child was living with them. Gunn was included in the paperwork that began to amass—criminal-background checks, financial and medical reports, an apartment inspection—but only as a roommate.
Gunn told me that, over time, Hamilton forgot that she was enacting a fiction. She added, “I think she got too comfortable with it.” Gunn went on to describe Hamilton as homophobic: “She doesn’t have a lot of gay friends.”
The romantic relationship did not survive the year. Gunn voiced concern about the responsibilities of motherhood, and about the potential psychological difficulties that an adopted child might have. She was also attached to the life of comfort that she’d managed to build. (By now, this included the summer house on Fire Island. Hamilton recalled Gunn saying, “I just want to be drinking cocktails by the pool.”) She rekindled a relationship with a former girlfriend, Maria Piñeres, an artist who lived in Los Angeles. As Gunn told the court, “This opened up a can of worms.”
Judge Nervo interjected, “Who would have thought?”
According to Hamilton and her friends, the couple broke up in December, 2009. Gunn rejected that description. She said that they had experienced a moment of crisis—“a big excavation of important things that we needed to work through before the baby comes.” She added, “I am entitled to go through a crisis. I’m entitled to take time and navigate that with a partner.” Although she and Hamilton stopped sleeping together, their sense of family survived, she said. She claims that Hamilton didn’t truly move away from Sullivan Street until 2011. “She came every day!” Gunn told me. “Her computer was still in my apartment.” Hamilton sublet a series of apartments, but, in Gunn’s opinion, these were merely for “lovers.” As Gunn put it, “The only thing she couldn’t do at my apartment was bring home a girlfriend.” Hamilton disputes this—she certainly moved out—while acknowledging that she was often at the Sullivan Street home, as a friend and as an employee; she remained the office manager at Shasty.
Jane Aronson noted that many modern relationships take unconventional forms, and may not be best understood as being either on or off. “Who’s to judge if they were broken up or not?” she asked, adding, “This is just a divorce with two people who can’t work their shit out, and the kid’s stuck in the middle. And we’re trying to determine whether one’s a parent or not? You would never do that if people were straight.”
Neither side disputes that, in May, 2010, Gunn and Hamilton signed a separation agreement. Under its terms, Gunn paid Hamilton three hundred and fifty thousand dollars to remove her from the deeds of the New York apartment and the Fire Island house. These properties were co-owned, although over the years Hamilton had made a far smaller financial contribution to their partnership than Gunn had. Gunn now describes this cash as a gift—disguised, for tax reasons—that would allow Hamilton to set up one of the homes of their future child.
As the separation agreement was being discussed, Hamilton e-mailed the attorney who was helping them, and included a query about child support: might she ask Kelly for this one day? She added, “If I can manage on my own, I won’t ask.” The final agreement didn’t refer to child support. But, in court, Chemtob brought up the e-mail dozens of times. When I talked to Hamilton about it, the subject flustered her. At one point, she claimed to be unfamiliar with “child support” as a phrase.
The adoption application—in Hamilton’s name—was not withdrawn after the breakup. Hamilton kept the paperwork updated, and attended seminars about adoptive parenting. But Gunn contends that Hamilton never explicitly told her that she was now adopting as a single mother. In December, 2010, Hamilton bought a one-bedroom apartment in the West Village, and her adoption application stopped referring to the Sullivan Street apartment, or to a roommate. Gunn insists now that she was no less a co-applicant than before. “We were pregnant, basically,” she told the court. She has also described herself as part owner of the adoption application, which she called an “asset.” (Gretchen Beall Schumann, a colleague of Rabin’s, suggested to me that this was like claiming ownership of “the intellectual property of a conversation about I.V.F.,” after breaking up with a partner who subsequently began fertility treatments.)
In March, 2011, nearly a year after the separation agreement, the adoption agency sent Hamilton a photograph of Abush, who was fifteen months old. His mother had left his father, who had then brought him to an orphanage. In the photograph, Abush was wearing a white T-shirt with cartoon dinosaurs on it, and he was holding car keys in one hand and a bracelet in the other. He had perhaps been handed these to soothe him; he looked as if he had been crying.
The day she received the photograph, Hamilton forwarded it to Gunn, who was in Las Vegas on business. Gunn later told the court, “We both cried and felt, like, finally.”
That summer, Hamilton made two trips to Ethiopia. On the first, she spent ten days with Abush. On the second, she formally adopted him in Addis Ababa, and then flew back with him, through London. Gunn, who had been working in Hamburg, met them at Heathrow Airport.
“I can’t describe the feeling,” Gunn told me. “I just fell in love with him. He comes waddling through with Circe, holding an orange that he carried all the way from Ethiopia.” She said that, at Heathrow, when Circe left her alone with Abush for a few minutes, she felt an “instant connection” with him.
He slept on her lap during the flight to Newark. “It just felt amazing,” she said. “I have pictures. When I reclined my chair, he laid his little chubby hand on my arm. I didn’t want to move, ever. It felt like, in that moment, all the shit that we’d gone through, and all the work—here’s this person. It’s such a long process, for gay people. The planning to have a child is so extraordinary. It’s interesting—how much we have to plan, and how much stress that can put on your relationship.”
I asked Gunn if she had thought of herself as a full partner in the adoption during the eighteen months before Abush flew to New York. “I did pursue it—full throttle,” she said. “Had I not, I wouldn’t have given Circe three hundred and fifty thousand dollars.” She went on, “I did what I was always supposed to be doing. I’m the provider.”
The day before the 2016 Presidential election, Circe Hamilton took Abush—now six—to a swimming class in Battery Park City. On the way, they stopped in the graveyard of Trinity Church, on Broadway, where Alexander Hamilton is buried. Circe’s mother, Louanne Richards, was with them. Richards lives in Oxfordshire, but she spent much of last fall in New York. A former Royal Ballet dancer, she now works as an acupuncturist and a tai-chi teacher; she has an optimistic, utopian bent. When she first met Gunn, she scolded her for being a capitalist.
Hamilton’s parents divorced when she was twelve. Harold Hamilton, her American-born father, lives in Rhode Island, and teaches film. Gunn said that he has the air of “someone waiting for the trust fund that’s never going to come.” When Harold was young, his parents divorced, and his mother married Pierpont Morgan Hamilton—the grandson of J. P. Morgan, and the great-great-grandson of Alexander Hamilton. Pierpont adopted Harold. During Circe’s childhood, the Hamilton ancestry was not a part of family conversations; she learned of it only last fall. “I called my grandmother’s fourth husband,” she told me. “I asked him, ‘Is there a bloodline to Alexander Hamilton?’ He said, ‘Oh, yes.’ ”
In the churchyard, in front of Hamilton’s tomb, Circe told Abush, “That’s your distant relative.” As Hamilton later recalled, he replied, “No way!”
The next week, I sat with Hamilton at the desk that she was using at the offices of her attorneys, in a tower by the Port Authority Bus Terminal. During the trial, she often went back to the office, after court, with Rabin and her colleagues; later, she’d go home to put Abush to bed, then return to midtown. She had her own supply of English tea bags in the firm’s kitchen.
Hamilton showed me the box of photographs that she brought to court each day. Many of the images had been taken on a return trip to Ethiopia, in 2015, when Abush reunited with his birth relatives. Hamilton expressed worry that these family members might learn of the legal case—and so register her lack of candor about her sexuality. She became tearful. This was unusual: in our conversations, she tended to be evidence-oriented and almost brusque; her hands busily sketched out arguments in the air, and her laments were accompanied by dry laughter.
Chemtob’s witnesses testified for nearly two months. (Meg Canby called the trial “a proceeding run amok.” Forty-day trials privilege the rich.) According to the case that Chemtob was making, a plan to adopt was an agreement made in perpetuity, unless it was explicitly cancelled. “It’s good forever?” Nervo asked, at one point. “Yes,” Chemtob replied. To buttress her claim that the plan had survived, Gunn, along with friends and relatives, had testified to her parent-like behavior toward Abush.
Hamilton’s lawyers had collected letters from a hundred people who challenged Gunn’s story, but these witnesses had still not been heard. The protracted trial was testing Hamilton’s outlook on life, which Valentina Rice had summarized as “It’s all meant to be.” Hamilton described a recent attempt by lawyers on both sides to agree on a calendar of the time that Gunn had ever spent with Abush; this required a meeting that stretched over three days, and involved a dozen people—their shoes off, ordering sushi—arguing about whether an overnight stay counted as two days or one. Earlier, Hamilton had heard Chemtob say to Rabin, “Just make her a parent, and it’ll all be done.”
In my conversations with Chemtob, she had been puzzled that Hamilton was able to afford her representation. Hamilton told me that she had borrowed money from family and friends, but it seemed unlikely that this was covering all the costs. (Chemtob had mentioned one small part of the expense: “rush” trial transcripts cost each side more than a thousand dollars a day.) Hamilton decided to sell her apartment; last week, she was in contract with a buyer.
Hamilton told me that Gunn lost interest in the adoption in 2009. “She was amassing her fortune—she just didn’t have time,” she said. “She was racing around the world for Apple.” After the breakup, Gunn felt “sad and guilty,” Hamilton said. The financial settlement was the act of “a concerned friend, saying, ‘Yes, I know I jumped ship, but I want to take care of you.’ ” Hamilton noted an e-mail that Gunn had sent in January, 2010, from L.A., while watching reports of the Haitian earthquake on CNN. “You could get yourself a Haitian orphan,” she wrote. Later, Gunn wrote from Colombia, on a visit with Piñeres: “Maria said you could get a kid here.” In an instant-message conversation with Terri Potter, an old friend and a sometime Shasty employee, Gunn explained that she didn’t expect to get back together with Hamilton: “We don’t have a sexual connection / and I don’t want to be a mother / two very big issues.” Asked about the exchange in court, Gunn said that she was sarcastically parroting language that Hamilton had used when telling people about their breakup. Potter testified that she had detected no sarcasm.
If Hamilton never announced, in writing, that she was now adopting alone, Gunn appeared to have registered this change. At the start of 2011, a year after the end of her romantic relationship with Gunn, Hamilton was renovating her new West Village apartment, and had a new girlfriend. Gunn e-mailed her: “You said I would wake up and realize I’ve lost everything. And that’s where I am these days.” A few minutes later, she added, “I am just going through a lot of emotions around the loss, of the baby that will never be, the life that will never be. I realize I’m a year too late, and this is your new year. New home, new partner, new life coming.” In a February, 2011, e-mail to Aronson, Hamilton said that Gunn had experienced “a bit of a midlife crisis,” adding, “We are friends, but I am pursuing this adoption solo.”
When Gunn first saw a photograph of Abush, on the work trip to Las Vegas, she wrote to Hamilton, “He’s adorable. I am so emotional from the news. I’m sure this is a big day for you.” She went on, “I am doing my best to temper my own emotional reaction to this, and I want you to know I am so proud of you for following your dream. You made this happen!” Gunn added, “I saw his face, and a wave of grief rolled over me. He was supposed to be our son. I’m not sure I will ever get over my regret and sorrow over that. But I will be very very happy for you and for him, and hope to find a way to be in your lives.” It was a striking aspect of the litigation that, for both parties in the dispute, affectionate and encouraging messages had become weapons for the opposing side. The case was a war fought with kind words.
That summer, Gunn hosted what was, at the time, referred to as a baby shower. (“It wasn’t a shower,” Gunn told me. “My staff and I went out and got stuff for her and went over for dinner.”) Shortly before Hamilton brought Abush to the United States, Gunn wrote, “We’re all ready for him in NY. It takes a village.” After Hamilton agreed to Gunn’s suggestion that they should all meet at Heathrow, Hamilton wrote to a friend: “Kelly (the ex) weirdly is in Hamburg on a job and will help me.” Gunn used frequent-flier miles to upgrade Circe and Abush on the flight to Newark. Chemtob later described this as a financial contribution to the adoption. “Miles are money!” she said.
When Abush first arrived in New York, he was not entirely healthy, and he didn’t understand English. Hamilton had a wide network of friends—her group e-mails about the adoption went to eighty people—and she was happy to let Gunn be one of those involved in Abush’s life, and to accept help. In the first months after Abush arrived, Gunn came to several of his medical visits. She also took him to Tumbling Tots classes at Chelsea Piers, and for walks in the park. Gunn describes this as a sustained pattern of parenting. If her role in Abush’s adoption had at times been more auxiliary than collaborative, this could describe any number of people approaching parenthood; Gunn presents herself as a bountiful ex-partner who strayed, but who never renounced family commitments.
This reading seems to be challenged by the regret, the baby shower, the lack of evidence showing Gunn assuming the identity—joyful or not—of a parent-to-be. (In June, 2011, when Hamilton first visited Ethiopia, Gunn sent a jokey e-mail from a retreat in Italy: “Can you take more than one kid? Guess it doesn’t work that way exactly.”) In Gunn’s attempt to align her narrative with Barone’s, her money—her availability as a provider—must stand in for other, missing facts.
And, if it’s true that Gunn never retreated from the adoption—and that “the only one who broke any sort of plan was Circe,” as Chemtob put it to me—it’s confusing that Gunn approved an e-mail, sent to her company’s staff and clients in September, 2011, that welcomed Hamilton’s baby to their community but did not mention Gunn. And it’s odd that there is no evidence of Gunn pushing, at the time of Abush’s arrival, for a second-parent adoption. Instead, in an e-mail to Hamilton in November, 2011, she wrote, “You’re doing a killer job raising a vibrant kid. I admire you for all you’ve done, and are doing. How amazing you found each other.”
It may be that, after Abush appeared—after he’d fallen asleep on Gunn’s lap—she changed her mind. As Hamilton put it to me, “I think that she meets this little boy, and this wasn’t what she expected, and she falls in love with him and wants ownership.” If this is correct, then in those first months Gunn may have allowed herself to infer, from Hamilton’s willingness to let her be involved in Abush’s life, that if she played the part of a decent, divorced parent then Hamilton would treat her as one. But this proposal was unspoken. Regret, followed by stealthy solicitousness, would be understandable and not ignoble, but this would hardly be Brooke S.B.
Hamilton recognized that Gunn was keen to have time with Abush, but she didn’t treat this as a risk—she remained fond of her, and maintained a casual confidence that things would work out, and perhaps valued Gunn as insurance against financial disaster. (Hamilton also wasn’t opposed to the day-to-day advantages of having a friend with money: she drove Gunn’s BMW more than Gunn did.) Just after Abush’s arrival, Hamilton told Jane Aronson, in an e-mail, that Gunn now wanted to be involved with him. “I don’t want to get back together with her and don’t want her help financially but do love and respect her as a friend,” she wrote. “So if there is another person in his life that wants to help babysit and look after Abu, I’m not saying no! We shall see how this pans out.” Hamilton recently told me, “That’s the big argument. Was my non-directness at fault for how I arrived at today? My kindness, my naïveté? My family has a lot to say about that.”
Early in 2012, after six months in New York, Abush stayed overnight with Gunn for the first time. Not long afterward, Gunn thanked Hamilton for trusting her with the boy, and for “allowing me to love him and be loved back by him.” Hamilton told Gunn, “I encourage him with his friendship and love for you.”
But Gunn was beginning to chafe against limits to her access, or status. She was upset not to be mentioned in an article, in the London Times, about Hamilton’s adoption of Abush. Gunn told me that one night in May, 2012, when Abush was at Sullivan Street, “he had some emotional freak-out in the middle of the night.” She went on, “He starts crying—wailing. And I knew enough from the training, from books we read, from Jane, that these kids have problems, and you don’t know what’s going on. And he couldn’t even talk. So I held him, and I said, ‘It’s O.K., I love you.’ It was really—as a parent—one of those magical moments, where you comfort your kid. It was profound and beautiful.”
The next day, she described this to Hamilton. “I’m thinking, She’s going to react, like, ‘Oh, my God, that’s so sweet.’ ” Instead, Hamilton cried. Gunn saw this reaction as “cold.” Her response to Hamilton’s distress, and to Abush’s, seems to have been narrowly focussed on her own emotional needs. “She was jealous that I had this bond with him,” Gunn said. “She wanted to be the only one. She wasn’t happy for me, or for him, that this moment happened. I can’t imagine what else it could be.” (Hamilton’s memory is that she was pained to think that she hadn’t been there to comfort Abush.)
Gunn called Aronson, who, she said, “validated my feelings that this was actually a very beautiful and poignant moment for Abush.” Aronson gave her Chemtob’s number. It was four years before Gunn used it. “I told Kelly from the very beginning, ‘Keep a schedule of every visit,’ ” Aronson told me. “And ‘Make sure you have all the receipts.’ ”
Hamilton recalled a series of conversations with Gunn that began in the spring of 2012. “She wants a title, she wants to be honored,” she said. “We talk about it a lot. ‘Aunt’? ‘Godmother’?” According to Hamilton, there was no discussion then about a second-parent adoption. (Gunn disputes this.) That summer, they agreed on “godmother.” Gunn defined her role in a long memo, in which she noted, “My involvement in gymnastics, swimming, and other sports in my youth is something I’m excited to share with him as he grows.” A later e-mail seemed to extract as much familial meaning out of the title as possible: “I am his godmother, that is family—I (god)parent him, nurture and love him.” Gunn and Chemtob now describe the godmother title as a restraining order.
After attending three or four of Abush’s medical visits, Gunn never went to another. She didn’t take him on vacation without Hamilton, or go to parent-teacher conferences. Gunn did often pick Abush up from school and take him to extracurricular activities, and there were frequent sleepovers at Sullivan Street—usually on Thursdays, when Hamilton liked to go to movie screenings hosted by a friend in the East Village. Hamilton recalled that Gunn was often in Los Angeles, where she later bought an apartment; Gunn and Piñeres were briefly engaged. (“We weren’t the focus of her world,” Hamilton told me. “She led a bicoastal life.”) Gunn’s argument is that, wherever one can see her involvement, this indicates co-parenting; where one cannot, Hamilton has sidelined her. (Or, as Aronson put it to me, “terrorized” her.) “I knew I had no actual rights,” Gunn told me. “I didn’t want to stir the pot. I was scared. But I had faith in Circe. I really thought she’d come around.” In court, Chemtob referred to Gunn as “almost like an abused child.” Aronson told me, “Kelly second-citizened herself in this relationship, because of guilt, the nature of who she is culturally—Irish-Catholic girl, gay. You’re always going to have a mind-set that you’re worthless.”
Hamilton seems to have treated Gunn as one might treat a difficult sibling. She valued Gunn’s attachment to Abush, even if she connected it, in part, to turmoil in Gunn’s life. In 2012, Gunn retired from the graphics firm and began to close down Shasty. A beloved dog died. During the next few years, Hamilton said, Gunn seemed to become unmoored and needy: “She became more obsessive—wanting more time, wanting to know who was in my world.” Hamilton added, “It was ‘What are we doing on the weekend? Who are you dating?’ ” According to Valentina Rice, Gunn clearly wanted to re-start a relationship with Hamilton. (Gunn denies this, saying to me that her interest in Hamilton’s romantic life was related only to Abush: “I could give a shit who she’s dating, but I really want to know if that person is sleeping in the same room as him.”) Rice recalled that Hamilton also worried about Gunn spoiling Abush: “There were so many gifts and clothes and toys—and she didn’t want to bring him up that way.” Hamilton, whose distrust of materialism has British upper-middle-class roots—describing Gunn’s apartment, she remarked that it contained no hand-me-down furniture—said that Gunn had told Abush, “You know that the beach house is yours, the dog is yours.”
When Rabin, Hamilton’s lawyer, later came to survey this history, she concluded that Gunn had become used to “a lot of control over her world—her employees, her friendships.” Time with Abush, she said, “gave her a sense of family, and she didn’t have to do any of the work—it was all play and fun.” Rabin detected in Gunn “a huge sense of entitlement”; her frustration with limits on her role was “about her ego,” Rabin said. “It’s a narcissistic injury.”
By 2015, nearly four years after Abush’s arrival, the relationship between Gunn and Hamilton had become strained. Gunn was pressing for weekend time, and protesting about not being included on the planned reunion trip to Ethiopia. Hamilton agreed to some shared sessions of therapy. “Why do I do these things?” Hamilton asked me. “I’m now trying to establish boundaries.”
In an e-mail sent in May, 2015, Gunn asked Hamilton for assurances of continuing “access, primacy, etc.” in her relationship with Abush, even if a stepparent came into his life, or if he moved to the U.K. “I long ago made peace with my role as godmother,” Gunn added, noting that she had “never inferred or articulated” to Abush, or to anyone else, that she was his mother. (Contradicting this, Gunn told me that she had always replied “yes” when asked if Abush was her son. She also said that he did, in fact, call her “Mommy,” although none of her witnesses recalled hearing this.) Hamilton withheld the assurances Gunn sought. “I don’t know when or how ‘god mum’ meant ‘second mum,’ ’’ she wrote. “I am sorry that I haven’t been clearer on defining your role with Abush.”
In March, 2016, Hamilton sublet her apartment, to save money. After one apartment fell through, she and Abush ended up, rent free, in a sunny, open-plan carriage house at the back of a friend’s West Village brownstone; she is still living there. In court, Chemtob characterized these arrangements as being close to vagrancy, and noted, to me, that Hamilton had rejected Gunn’s offer to give her half of a Brooklyn town house, and another offer to straighten Abush’s teeth. Chemtob said of Hamilton, “I don’t think she does everything she can for the child. I’m not saying he needs a driver, but he definitely needs braces.” Hamilton sometimes seemed to be on trial for insulting two contrasting sets of assumptions about how a modern Manhattan family should look: she’d failed to gain full access to high-bourgeois comforts; and, by resisting Gunn, she was showing bias against new family configurations, and the gay culture that had helped to create them. Gunn described her to me as “heteronormative.”
Hamilton often told people that she might move back to the U.K. She saw work opportunities there, and Abush had fallen a little behind at school. She was also worn out by the negotiations with Gunn. Last summer, she and Abush took a six-week trip to England. They looked at schools. Midway through, Gunn came for a week. As Hamilton recalled it, Gunn declared, “I’m here to buy property in England. If you move back, I will come, too.” There were several long discussions. Gunn pressed for time with Abush on a schedule similar to their New York routine; Hamilton resisted. Gunn flew home, but changed her Facebook setting to show that she now lived in London. (Gunn recently claimed that she always changed this setting when travelling. But long after she returned to New York her profile page still showed “Lives in London.” ) Gunn told me, “I think it makes Circe crazy that she has to consider somebody else—and I’m pretty pliable. I allow her a lot of autonomy with Abush.”
On August 15th, Hamilton wrote to her, “I’ve decided I’m going to give England a try and I really need you to not come.” She said that they’d visit Gunn in October and the following April. When Gunn opened this e-mail, she recalled, “I just started wailing.” A few days later, she spoke to Chemtob.
By then, Hamilton had returned to New York. She went camping with friends, took Abush to Rhode Island to see his grandfather, and started to say goodbye.
In November, 2016, Chemtob rested her case. Rabin submitted a motion to dismiss, arguing that the evidence presented was so weak that the court should reject Gunn’s petition without requiring a response. The Judge invited oral arguments from both sides. Chemtob read from a dozen e-mails in which, over the years, Hamilton had told Gunn how much she meant to Abush: “Marvelous time”; “We would be lost without you.” Rabin, in turn, described Gunn’s petition as a form of assault on Hamilton. “Love doesn’t make a parent,” she said.
“It just might,” Judge Nervo replied.
The attorneys were not expecting Nervo to respond to Rabin’s motion before the end of the year. “The waiting is very scary,” Hamilton told me in December. “I have to keep it together.” She had just done her first work in months; this included a portrait of Clea Newman, one of Paul Newman’s daughters. She had been denied permission to take Abush to England for Christmas. Gunn held a seventh-birthday party for him, at Sullivan Street, and posted photographs on Instagram. Hamilton said that Gunn now had “more access than she has ever had before,” adding, “She has amped up the present-giving. And she’s pushing her relationship with him to new bounds.”
Hamilton and Gunn both worried about how the dispute was affecting Abush. Gunn told me, “He knows something’s really weird, but nobody’s saying what.” She said that when she had referred to herself, in passing, as a part of his family he’d paused for a moment, then said, “But Mommy said you’re just a friend.” She had replied, “I think you know that’s not true.”
“The real law is what’s in the best interests of the child,” Chemtob told me. That phrase had hung over the proceedings. It had inspired unsuccessful attempts by Chemtob to bring Abush’s opinions into the courtroom, by means of a forensic psychiatrist or a law guardian. And it provided some cover for Chemtob’s courtroom remarks about Gunn’s financial advantage over Hamilton. (Rabin, reacting to this line of argument, told me, “Judges are people, too. And sometimes they sit there and think, Wow, if this person could pay for a private school and a good college . . .”)
“Best interests” lies at the heart of family law. It guides a judge who’s hearing a child-welfare case, or a dispute, between parents, about custody and visitation. And it sounds like a natural, virtuous idea to bring to a conversation about who is and is not a parent. It helped establish the concept of de-facto parenthood. At a panel discussion held in December, Meg Canby argued for “a more child-centered jurisprudence” than the Brooke decision had provided for—something closer to a de-facto rule. The panel discussed a touching video of her son that Barone had shot, and a remark he’d made that was later quoted in Barone’s appeal. He asked Barone, “You won’t forget me, will you?”
Chris Gottlieb, the N.Y.U. professor, made a counterargument. “Courts are terrible at figuring out what is in the best interests of a child,” she said. Judges “aren’t free of biases,” and so “a best-interests rule is likely to hurt a disadvantaged group”—hippies, at one time, and gays, until recently. Writing in 1973, Hillary Rodham described the rule as “a rationalization by decision-makers justifying their judgments about a child’s future, like an empty vessel into which adult perceptions and prejudices are poured.”
The amicus brief that Gottlieb and a number of nonprofit groups submitted in the Brooke S.B. case argued that Barone should be recognized as a mother, but it sought to steer the court away from de-facto standards. Describing her concerns to me, Gottlieb imagined a working-class single mother who found that a fairly typical modern romantic life—a series of monogamous relationships—held alarming new uncertainties. “Is it the two-hundredth dinner that they cook for my kid before they get rights?” she asked. A de-facto rule could also give an abusive lover a new weapon, in the form of a threatened lawsuit. “I worry that, further down the line, you could even think about a nanny seeking rights,” Gottlieb said. Such cases have not yet proliferated in the one-third of U.S. states that recognize some form of de-facto parenthood. But it takes time for such cases to appear, and New York is especially litigious. (In 2015, New York had a domestic-relations caseload of five hundred and ninety thousand; the caseload in California, which has twice the population, was three hundred and eighty-seven thousand.) “If it’s really the basis of your rule that a separation would be hard emotionally for a child, that applies just as much to a nanny,” Gottlieb said. “Because the truth is kids are emotionally damaged all the time, and we can’t protect them from that. Somebody has to make the choices for them.”
In December, Rabin was in the audience for the Brooke S.B. panel at which Canby spoke, and at the end she stood to make a skeptical point or two. In her view, the speakers had underestimated the legal consequences of making a person a parent. The panel’s chair, a judge, asked Rabin to stop lecturing the room. It was a peculiar moment. Rabin—who is gay, and a parent, and who has no argument with Barone’s victory, and who is admired for her own challenge to Alison D., in 2010—seemed to have been cast as a reactionary, intruding on a celebration.
I saw her in her office the next morning. “That’s the focus right now—‘What does the child think?’ ” Rabin said. “I really think that has to be the wrong question, unless you’re talking about a ten-year-old who has only known this other person as a pure parental figure, not just somebody who spent a lot of time with them, paid for certain things, was loving to them.” Barone was a parent, unquestionably, but if courts start “to mush it up, then the standards become lower and lower and that’s when the confusing floodgate cases happen.” She added, “What I’m concerned about is that judges will get persuaded by a picture that shows somebody with their arm around a child.”
On January 5th, Judge Nervo rejected Rabin’s motion to dismiss. Gunn and Hamilton had agreed to a plan to adopt, he wrote, and the plan existed “even after the parties executed a separation agreement.” He observed that “at no time did respondent advise petitioner that she would be proceeding with this adoption on her own.” Gunn’s role in Abush’s life wasn’t godmotherly; rather, it resembled that of an “ordinary parent with a child conceived or adopted with a now-estranged partner.” He quoted from an e-mail in which Hamilton told Gunn that Abush “loves you so very much and very much considers you part of his family.”
This wasn’t a final ruling in the case, but Chemtob was giddy. She told me that this was her career’s highest point. She had again encouraged Rabin to throw in the towel. “I don’t have a towel,” Rabin replied.
Hamilton sounded distraught. After Gunn gave up on the adoption, she said, she did not: “And I’m so glad, and it’s magical—but for her to crush it now. . . . It makes everything seem dirty, convoluted, a lie. It’s so sad. Just dark, dark.” Rabin told me that she was baffled by Nervo’s idea that Gunn resembled a divorced parent. “She is told she’s not a parent, admits she’s not a parent, says, ‘I’ve never told the child that I’m the parent,’ ” Rabin said. “All there is, in the most objective way, is a relationship. And some continuity of contact.” I asked Rabin if Hamilton had allowed ambiguity to enter the relationships among Gunn, Abush, and herself. “I think that’s why the court said, ‘We want clear and convincing evidence of consent,’ ” Rabin said. “Relationships are about ambiguity. Especially for single parents who rely on other people.”
Rabin knew that a judge has an obligation, when weighing one side’s motion to dismiss, to regard the other side’s evidence as impeccable—to assume that every witness has spoken the truth. But she nevertheless seemed taken aback. Nervo was perhaps again trying to force a settlement. On January 18th, the lawyers all met in his office. Neither side would budge on parenthood. In a case that had begun with Gunn hoping to send Hamilton a stern letter, Chemtob’s current position, she told me, was that Gunn needed “sole decision-making on medical.”
So the proceedings resumed, and for eight days Hamilton’s witnesses came to court. They reported that nobody had toasted Gunn at the baby shower; that before the breakup Gunn had declared her dogs to be “enough responsibility”; that she had not referred to Abush as her son. Terri Potter, Gunn’s old friend, contradicted Jennifer Gunn, Kelly’s sister, who had testified that before Abush’s arrival a room was being set up for him on Sullivan Street. (Potter knew the room, because she’d slept in it often.) A teacher from Abush’s preschool said that she didn’t know Gunn as a parent. Another teacher said that she had never heard Abush say Gunn’s name. Michael Gray, a neighbor in Hamilton’s building, whose children became close to Abush, described having almost daily contact with him, and weekly sleepovers; he said that Abush called him “Daddy Michael.” (Chemtob, in scornful reference to the idea that Gunn was just one member of a network supporting a single mother—in the spirit of “It takes a village”—referred to witnesses like Gray as “the village people.”)
Gunn rotated her seat further, so that her back was more turned to Hamilton. During Potter’s testimony, she wrote, “Ungrateful slag,” on a Post-it note.
In mid-February, the court met for the last time. Chemtob and Rabin each spoke for forty-five minutes. The Judge said that he’d been given “a little too much to think about.”
The court rose. It was a Thursday afternoon—time for one of Gunn’s visits with Abush. She looked directly at Hamilton and said, “Where is he?”
On April 14th, Nancy Chemtob called me. “We lost,” she said. Gunn’s petition had been denied. Judge Nervo had written that, under Brooke S.B., a preconception plan could create a path to parenthood. In a case like Gunn’s, he wrote, this had to mean a plan that had “continued unabated”; the words and actions of Gunn and Hamilton showed that their plan had been terminated. Nervo ruled that, on May 1st, Abush would get back his passports, and his court-ordered visits with Gunn would end.
Chemtob sounded affronted. Nervo’s stress on “unabated” was an attempt to amend Brooke S.B., she said, and this risked reviving Alison D. She said, “Kelly used to say to us, ‘This is about being gay, about discrimination.’ And we would just try to get her away from that”—to keep the court’s focus on her and Abush. Chemtob was now persuaded that Gunn was right.
A few days later, Hamilton was walking near Bryant Park, to get lunch after a morning spent with her attorneys. She and Abush had just been away for spring break—first to see friends in New Jersey, then to a cabin in upstate New York. The news of the decision had come as they approached the cabin. “I could finally exhale,” she said. “I’d been holding it together for seven and a half months.” She said nothing to Abush about the ruling. They went looking for deer in the woods.
Hamilton and I went to the offices of her lawyers and continued to talk. Rabin appeared in the doorway. “I just got notice,” she said. “They want to go to the appellate division tomorrow.”
The next day, Chemtob secured an interim stay on Nervo’s decision. (“Yea!” she e-mailed to me.) The appeal would take months, and would be preceded by a decision about whether Abush would be expected to remain in New York during that time. Meanwhile, the court still held Abush’s passports, and Gunn was still entitled to visits. When I spoke to Gunn, she was certain of the justness of her cause, and dismissive of Hamilton, her lawyers, and Judge Nervo: “This guy doesn’t get to tell me I’m not Abush’s parent.” But she recognized the possibility of eventual defeat. “Every minute, I have to consider that I could never see him again,” she said. She was in regular contact with Barone. “She was heartbroken for me and for Abush,” Gunn said.
Hamilton’s upstate trip had begun with a stop at Newark Airport, where she picked up a rental car. She recalled, “My son was ‘Airplanes! England! Let’s go!’ And I was ‘No, we can’t yet.’ He doesn’t know why. And every time he asks—‘Why didn’t we move? Why didn’t we go at Christmas?’—I say, ‘It’s up to the universe.’ ” Hamilton laughed. “What can I say? He’s, ‘Mommy, I’m cross! The universe can’t talk. Just hurry up.’ ” ♦
