'Best interests' test met in guardianship case.

Neither race nor sexual orientation is a valid reason to deny or grant custody of a child to a non-blood relative, a Brooklyn, New York, family court judge has ruled. The best interests of the child are what counts, she wrote.

That said, Judge Betty Staton awarded custody of four-year-old Astonn H. to the white lesbian partner of Margo H., an African American woman who died shortly after giving birth to her son, who is also African American. (In re Astonn H., No. V-522/92 (N.Y., Kings County Fam. Ct. Oct. 24, 1995).)

"This was a very difficult case," said Manhattan lawyer Susan Bender, who represented Sofia D., Margo's partner of three years. "I take my hat off to the judge. She used the right law and cut right down to the bottom line. She decided this case in the best interests of the child."

Margo's 1991 death had triggered a protracted, triangulated custody contest with Margo's estranged husband and mother-in-law on one side, Margo's mother on another, and Sofia on yet another. All parties except Sofia are African American.

Midway through the lawsuit, Margo's mother, identified as Ms. C. in court papers, relinquished her desire for guardianship of Astonn in favor of Sofia.

Ms. C. testified that she knew Margo and Sofia had intended to raise Astonn together and that Astonn's "face fit up" whenever Sofia appeared. Ms. C. noted that Astonn was sent home with Sofia on the day of his birth while Margo remained in the hospital.

Derrick F., who was Margo's estranged husband but not the natural father of Astonn, argued along with his mother, Leora F., that Astonn would be best off living with Derrick's mother and father. They said they could give Astonn the opportunity to live with a stable African American family that is "consistent with his race [and] creed." They noted that Astonn would also have the benefit of growing up in the same house with his half-sister--a child born to Margo and Derrick during their marriage.

Leora and Derrick's argument that "it is Astonn's constitutionally protected right to be raised with his sibling in F.'s home . . . finds no support in the law," Staton wrote. She also rejected their argument that because Astonn is African American, he would benefit most from living with their family.

"The fact that none of the parties are related to Astonn presents unique circumstances such that race is simply one of many factors to be considered in determining custody," Staton wrote.

Staton, likewise, did not buy Sofia's argument that her relationship with Margo supported her right to be named Astonn's guardian.

"The court rejects this contention," Staton wrote. "Sofia's sexual relationship with the child's mother neither bars her petition nor supports it. The fact alone that Sofia is a lesbian is not determinative of her fitness to be Astonn's guardian. Only if a sexual lifestyle, homosexual or heterosexual, was shown to be detrimental to the child's well-being would it be considered."

Staton acknowledged the "extraordinary combination of circumstances" that had to be weighed in determining Astonn's legal guardianship, but she found that "the only person here who has always been a stable, loving presence in Astonn's life from the time he was born is Sofia D."