Father of the Groom
By Alison Palmeri, Staff Writer
Although Nino Esposito and Roland “Drew” Bosee walked into the Allegheny County Courthouse a few weeks ago as legal father and son, they fully expected to be able to walk out as husbands.
After more than 40 years of being a couple, Esposito, 78, adopted Bosee, 68, in 2012 because they never thought same-sex marriage would be legalized.[i] In order to gain access to reduced inheritance taxes (from 15% to 4%) and other benefits, they needed to legally establish a familial relationship.[ii] “The adoption ‘gave [them] the most legitimate thing available to [them]’ at the time.”[iii]
Following the legalization of same-sex marriage in Pennsylvania in 2014 and the subsequent 2015 Supreme Court decision in Obergefell v. Hodges, however, Esposito and Bosee finally had the chance of obtaining the marital union they had longed for. But first, the adoption had to be annulled.
Both Esposito and Bosee anticipated that the annulment of their adoption would be a simple process and were shocked when their petition was denied by Allegheny County Court of Common Pleas Judge Lawrence J. O’Toole. O’Toole’s primary reason for the denial was that the original adoption was not fraudulent.[iv]
While O’Toole denied the annulment, other Pennsylvania courts have granted annulments in the same situation. Most recently, Bill Novak and Norman MacArthur, who had legally formed a domestic partnership under New York law in 1994. When the couple moved to Pennsylvania in 2000, Novak had to adopt MacArthur in order for their benefits to carry over.[v] The successful annulment of their adoption in May 2015 was “the first of an adoption-turned-marriage in the state” and they had hoped it would “‘[remove] the hurdle for other people in the same position.’”[vi]
Because this concept is relatively new to Pennsylvania, there is some confusion on how courts should handle the annulment petitions. O’Toole stated that “he was ‘sensitive to the situation Mr. Esposito and Mr. Bosee found themselves [in],’ and added that he ‘welcomes direction from our appellate courts.’”[vii]
Although O’Toole cited needing evidence of fraud to annul the adoption, the Pennsylvania Code is vaguer. Section 2739(b) states that “before the court may enter an order discontinuing an [adoption] agreement, it must find by clear and convincing evidence that discontinuance serves the needs, welfare, and best interest of the child.”[viii]
Arguably, it would be in the best interest of the legal “child,” Bosee, to annul the adoption and allow him to marry his partner in life of the past 40 plus years.
Esposito and Bosee have appealed the decision and oral arguments are expected to begin in December 2015.[ix]
[i] Perez, Evan and Ariane de Vogue, “Couple Seeks Right to Marry. The Hitch? They’re Legally Father and Son” CNN, accessed Nov. 6, 2015 <http://www.cnn.com/2015/11/03/politics/same-sex-marriage-adoption-father-son-pennsylvania/#>.
[ii] Schapiro, Rich, “Gay Pennsylvania Couple Seeks to Annul Adoption That Fetched Them Inheritance Rights Now That Same-Sex Marriage is Legal” New York Daily News, accessed Nov. 14, 2015 <http://www.nydailynews.com/news/national/gay-pa-couple-annul-adoption-wed-article-1.2422060>.
[iii] Perez.
[iv] Id.
[v] Dier, Arden, “’Father’ Marries ‘Son’ After They Dissolve Adoption” USA Today, accessed Nov 15, 2015 <http://www.usatoday.com/story/news/nation/2015/05/28/newser/28064115/>.
[vi] Id.
[vii] Schapiro.
[viii] Pa. Stat. and Consol. Stat. Ann. § 2739 (West).
[ix] Schapiro.
