Who is a Parent?

Michael B Schulman & ASSOCIATES

Who is a parent?  That question has been defined, albeit poorly, in New York jurisprudence for last twenty-five years as a person with either an adoptive or biological connection with a child.  This narrow and limited scope of the definition of parent has just been changed by the Court of Appeals in the landmark decision this week in the companion cases of In the Matter of Brooke S.B. v. Elizabeth A. C.C. and In the Matter of Estrellita A. v. Jennifer L.D. (Click Here to Read Decision)

For the first time, New York can now grant a non-adoptive, non-biological partner, who shows by clear and convincing evidence that both parties agreed to conceive a child and to raise the child together, the legal status of parent.  This will then allow that non-adoptive, non-biological partner, who has been active in establishing a relationship with child the opportunity and right to seek custody and/or visitation with the child upon an unfortunate breakup of the relationship with the biological or adoptive partner.

This remarkably overdue and groundbreaking decision was sorely needed in today’s ever growing landscape of non-traditional families in Long Island and New York State.  This ruling brings New York, a state with a large LGBTQ population, in line with many states across the country, including several conservative states like Oklahoma and South Carolina that already permit non-adoptive, non-biological parents to ask for custody and visitation rights.   As a result of the outdated definition of parent, many peculiar decisions have been handed down, demonstrating a fundamental and disproportionate unfairness to those families headed by same-sex couples, unmarried opposite-sex couples and stepparents.

For example, under the old rule a non-adoptive, non-biological “parent” would be liable for child support for the child but not be entitled to enforce custody or visitation rights for the same child.  The fact that visitation for the non-adoptive, non-biological “parent” might be in the best interests of the child was non-determinative because the non-adoptive, non-biological “parent” would not have standing to enforce visitation in the first place.

Obviously such a dichotomy of justice is untenable and was foreshadowed in the extraordinary dissent by Judge Judith Kaye in the original, and now overturned, 1991 Court of Appeals decision in In the Matter of Alison D. v Virginia M, 77 NY2d 651 (1991).  (Link to Decision here: https://www.law.cornell.edu/nyctap/I91_0072.htm).  The forward looking Judge Kaye observed then, at a time when same-sex couples could not marry or a biological parent’s unmarried partner adopt the child that such a narrow and harsh rule would cause a great hardship to a specific and growing number of families.

One crucially important caveat is that the decision is limited to partners who enter into a pre-conception agreement to have and raise a child together.  The Court left open the proper test for standing for custody and visitation for those partners who consent to the creation of a parent-like relationship after conception of the child.  However, it is likely that future cases will now proceed along the same vein of reasoning as this decision.

While the ruling is certainly a major victory for LGBT families across Long Island and New York, it is also a victory for thousands of non-adoptive and non-biological heterosexual parents as well.  These families will now be able to have standing to seek custody and visitation with children that they have raised and established a loving relationship with despite the fact that they are not biological or adoptive parents.  Truly, for the first time, the best interests of the child can prevail.

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