In a major ruling today that will benefit same-sex parents, among others, the New York Court of Appeals said that a person who is not related to a child by biology or adoption may still be considered a parent if they and the other parent agreed to have and raise the child together—even if the two adults are not married.
The court ruled, in Brooke B. v Elizabeth C.C., that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.”
In the case, Brooke sought to continue parenting and financially supporting the six-year-old son she and her former partner Elizabeth had planned and were raising together, explained Lambda Legal, which represented her.
The two women met in 2006, and settled in New York in 2007, four years before marriage equality there. Brooke gave Elizabeth a ring and they intended to marry as soon as they could. In 2008, Elizabeth became pregnant using an anonymous donor. Brooke cut the umbilical cord. Their son had Brooke’s last name on his birth certificate and both women were named as his parents on his birth announcements and baptism certificate. Brooke cared for him in all of the ways one might expect a parent to care for a baby.
The couple’s relationship ended in 2010, but Brooke continued to parent their son. He spent several nights a week with her, split time with both mothers on major holidays, and visited his grandparents on Brooke’s side of the family. Brooke continued to bring him to doctors’ appointments and daycare, and to provide for him financially.
In 2013, however, Elizabeth abruptly cut off contact between Brooke and their son. Brooke filed for custody and visitation—but found her way blocked by precedent in the state’s highest court—a 1991 ruling in Alison D. v. Virginia M. that said nonbiological, non-married, non-adoptive parents have no parental rights to children they raised with a same-sex partner.
The definition of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.
The definition of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.
The ruling also applies to the case of Estrellita A. v. Jennifer L.D., a similar break-up situation in which Estrellita sought child support from Jennifer, which the Family Court granted. Estrellita then tried to deny Jennifer visitation—which the Family Court said she could not do. Jennifer could not be a parent for the purpose of child support but not visitation, it explained. Today’s ruling upholds that decision.
A few further points: The court noted that marriage equality rulings have emphasized that same-sex parents and our children do exist:
Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v Hodges, which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.
Today’s ruling is a step towards putting all families on the same legal playing field (my emphasis):
Under the current [before today’s ruling] legal framework, which emphasizes biology, it is impossible — without marriage or adoption — for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child. By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.
This is a terrific ruling. The only dim spot, as LGBTQ family law expert Nancy Polikoff points out, is a footnote saying that current law “clearly limits a child to two parents, and no more than two, at any given time.” This leaves out families in which an egg or sperm donor is involved as a parent, say. California, in contrast, passed a law in 2013 that allows recognition of three or more parents. British Columbia in Canada has a similar law. There’s more work to be done in New York, then. Nevertheless, today’s ruling expands parental recognition in a way that is most definitely welcome.
