The legalization of same-sex marriage has caused a major problem for a Pennsylvania couple who are technically father and son. Before the Supreme Court struck down nationwide bans on same sex marriage, many gay couples were using adoption laws to gain legal rights as a family in order to receive inheritance benefits and hospital visitation rights.
In 2012, Nino Esposito adopted his partner of 40 years Roland Bosee. The pair is now trying to undo the adoption in order to get married, arguing, “The personal and social benefits of marriage are legion and unparalleled relative to any other association between individuals that our society formally sanctions and recognizes.”
State trial court judge Lawrence J. O’Toole has denied the couple’s request, stating that adoptions are typically only annulled in cases of fraud. Judge O’Toole noted that the men entered into a parent-child relationship to reduce the Pennsylvania inheritance tax payable upon the death of one of the men from 15% to 4%. O’Toole stated he is “sensitive to the situation” and understands the couple’s desire to marry, but said “they cannot do so because they are legally father and son.” In his final judgement, Judge O’Toole welcomed direction from appellate courts in handling comparable cases.
The American Civil Liberties Union spoke out about the case and did not feel that O’Toole had been unsympathetic. The ACLU believes O’Toole felt the legal path to annulling the adoption should be forged by an appellate court. Meanwhile, the ACLU of Pennsylvania has filed an amicus brief in support of the couple.
Witold Walczak, Legal Director of the ACLU Pennsylvania, stated, “The ACLU is hopeful that the Superior Court will apply established legal principles to allow annulment of adoptions by same-sex couples so that they can finally partake of their constitutional right to marry.”
Esposito and Bosee never thought they would live to see the day when same-sex marriage became legal in Pennsylvania. At the time they completed the adoption they believed it was their most legitimate option to becoming a legal family. Many other same-sex couples across the country are in the same predicament as Esposito and Bosee, who lawfully took advantage of adoption laws to protect their relationships, but now must challenge these same laws which provide no clear path to annulment.
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John Schutz
Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
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