Adoption gave gay Fox Chapel couple legal stature; now it disallows them marriage
October 9, 2015 1:13 PM
Nino Esposito and Roland Bosee have been together for 45 years.
Nino Esposito, left, and Roland "Drew" Bosee pose for a portrait at their home on Forest Highlands Drive Oct. 8. Mr. Esposito and Mr. Bosee have been together for 45 years.
Nino Esposito, right, and Drew Bosee pose for a portrait at their home on Forest Highlands Drive.
Nino Esposito, right, and Roland "Drew" Bosee are seeking to dissolve that adoption in order to get married.
By Chris Potter / Pittsburgh Post-Gazette
If there was ever a same-sex couple you’d expect to be married by now, it might be Roland Bosee Jr. and Nino Esposito. After all, the Fox Chapel couple has been together almost since the day they met, on Easter Sunday, in 1970.
“It’s hard to put your finger on: You meet someone and it just clicks,” Mr. Esposito said.
But they’re facing one of their biggest challenges now, just as couples like them have gained the right to marry. Because there’s a complication: While they’ve been partners for 45 years, they’ve been father and son for the past three.
Mr. Esposito, who is 78, adopted 68-year-old Mr. Bosee in 2012. In the days before same-sex marriage was legal, some gay and lesbian couples took that step to give their relationship a legal stature they were otherwise denied. And while Mr. Esposito and Mr. Bosee never thought they’d be apart, they also never believed the law would let them be together.
“We thought never in our lifetime — or in 20 lifetimes — would same-sex marriage happen,” said Mr. Bosee.
It did, of course. But while same-sex couples can get married, parents and children cannot. And when the couple petitioned Allegheny County Judge Lawrence O’Toole to dissolve the adoption this summer, he ruled the state’s adoption law didn’t allow him to do so.
The couple’s attorneys, Andrew Gross and Mikhail Pappas, have appealed the decision to the state Superior Court. Observers say it’s one of the earliest tests of how rapidly-shifting marriage laws will be squared with laws that haven’t budged at all.
“Our clients were deprived of their rights twice,” said Mr. Gross. “They did the only thing they could do to become a family, and now they are getting hit a second time.”
“There’s a reason why we did it and it’s obvious,” said Mr. Esposito of the adoption. “I just don’t understand what the problem is.”
Nino Esposito, right, and Roland “Drew” Bosee at their home on Forest Highlands Drive. (Michael Henninger/Post-Gazette)
‘A family of our own’
Adult adoptions have long been used for purposes like assuring inheritance rights, or formalizing ties to stepchildren. For same-sex couples, it also provided legal rights they couldn’t obtain any other way. While it’s impossible to gauge how often adoption has been used for that purpose, those who’ve done so include famed civil rights activist Bayard Rustin.
It often wasn’t an easy choice. “The sad part is many people were driven to adoption for fear that the significance of their relationship would be challenged by other family members,” said American University law professor Nancy Polikoff.
“We’ve never had an issue with bigotry,” said Mr. Bosee. He and Mr. Esposito “almost go out of our way not to raise flags” about their sexual orientation, he added, joking they’d come out to loved ones “by osmosis.”
They decided to pursue adoption in 2012, when they were revising their wills and the cost of discrimination became clear. Inheritance tax is 4 percent when a bequest is made to a family member, but 15 percent for property bequeathed to non-relatives.
Beyond the money, said Mr. Esposito, “We felt we lacked a family of our own. That was mainly what it was about.”
While the men had to provide testimonials that adoption was in Mr. Bosee’s best interest, they said the process was simple. It was only afterwards that things got complicated.
In 2014, a federal judge overturned a Pennsylvania law restricting marriage to one man and one woman. Earlier this year, the U.S. Supreme Court ruled that same-sex couples had a constitutional right to marry.
The rulings, welcome as they were, left Mr. Esposito and Mr. Bosee in a quandary: They’d given their relationship the only legal protection they could ... and now it was preventing them from getting married.
They decided to try annulling their adoption, thinking that, too, would be easy. Judges in Bucks and Dauphin counties have already granted similar petitions. But after a terse June 8 hearing, Judge O’Toole rejected the request, saying state law gave him no authority to annul an adoption.
“How can I do anything about it now other than because I would want to?” he asked Mr. Gross, according to a transcript.
“I can never get out of my mind the sight of him scrawling ‘denied’ across the order,” said Mr. Bosee.
Ms. Polikoff said Judge O’Toole’s decision was unusual: “There are a number of states where courts are agreeing to undo these adoptions.” Still, “It doesn’t surprise me that some judge would not allow it.”
What surprises some is that the jurist would be Judge O’Toole. “He has a reputation for being progressive” on LGBT issues, said Helen Casale, a Norristown family-law attorney. When the state’s gay marriage ban was struck down in 2014, Judge O’Toole helped a Pittsburgh couple obtain one of the state’s first same-sex marriage licenses, signing an order to waive the usual three-day waiting period.
In an opinion explaining this June’s ruling, Judge O’Toole wrote that he was “sensitive to the situation in which Mr. Esposito and Mr. Bosee found themselves,” and that he “welcomes direction from our appellate courts” on the issue.
Still, he noted, courts have generally reversed adoptions only for fraud, typically by a would-be adoptive parent who concealed the adoption from other caregivers. Revoking an adoption in other circumstances “would place in jeopardy and imperil adoption decrees generally,” he wrote.
Pittsburgh family-law attorney Sam Hens-Greco said he understood that concern: “When my clients come in for adoption, the biggest question they have is whether this is final.” That was even truer for same-sex couples, he added: “Because the law hasn’t given them equal rights, it was more of a concern that their adoption could be at risk.”
Then again, Mr. Pappas said the ruling against his clients “could open the floodgates in the wrong way.” The new legal landscape “didn’t just make gay marriage legal; it made prohibiting gay marriage illegal” by removing any barriers to same-sex marriage. Upholding Judge O’Toole’s ruling, he worried, could weaken that principle.
The appeal itself argues that the effect of Judge O’Toole’s ruling “is [no] different from the unconstitutional effect of the … laws that were struck down.” It also contends that the ruling ignored precedents establishing that “the welfare of the child is of paramount importance, even in proceedings to vacate an adoption decree.”
Mr. Bosee, the “child” in question, said Judge O’Toole’s ruling “irks me to no end. If you want a regular divorce, all you have to do is go through the motions.”
A discriminatory legacy
Though Mr. Bosee is technically an adoptee, he and Mr. Esposito are in another sense orphans, left behind by marriage laws that have changed radically, while other laws remain the same. And they aren’t alone.
Lawyers currently tell many same-sex spouses to adopt the children they actually do raise. That’s because the law presumes that when a married couple has a child, they are both its biological parents. That isn’t the case for same-sex marriages, and it’s unclear what rights and responsibilities a non-biological parent would have. That’s why Mr. Hens-Greco said he tells them, “It’s going to cost you, but I think you should go through with an adoption.”
Historic discrimination can catch up with a same-sex couple even long after they are married.
When a married couple divorces, said Ms. Casale, “the date on which you married defines the estate” — and the property the couple must share. But such a rule could harm a same-sex spouse “if the couple has been together for 20 years, but were only able to get married last year.”
Ms. Casale said the adoption case could establish a precedent for flexibility in the face of discrimination’s lingering impacts. “If the court does the right thing, it will show that same-sex couples didn’t have the right to marry before 2014, so they had to do other things to protect themselves.”
Mr. Gross said he hopes to have a ruling from a three-judge Superior Court panel by early next year. Until then, said Mr. Bosee, “We’ll make sure we don’t cross too many streets, and that we take all our pills. We’re just hoping this happens before one of us is dead.”
Chris Potter: firstname.lastname@example.org or 412-263-2533.
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