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Partner in an Unmarried Couple with No Biological or Adoptive Relationship to the Child has Standing as a Parent to Seek Custody/Visitation

On August 30, 2016 the New York Court of Appeals determined that the recently delineated principles of society established a need to overturn a twenty-five year old decision which previously defined the term "parent" in relation to custody and visitation rights. In reviewing two lower-level decisions, the court ruled 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 as a parent to seek visitation and custody.

Until this decision, the court had often deferred to Alison D. v. Virginia M. in determining that the term "parent" as defined by Domestic Relations Law § 70 only applied to biological or legal parents by virtue of adoption. Recently, the landscape surrounding this decision has been transformed by the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v. Hodges, which recognized that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples. Noting the change, the Court of Appeals found that the premise of heterosexual parenting and non-recognition of same-sex couples is unsustainable.

The decision was reached on two separate cases: Brooke B. v. Elizabeth C.C. and Estrellita A. v. Jennifer D. In the first case, the same sex couple jointly decided to have a child through artificial insemination of one of the parties. The parents raised the child together for two years before their relationship ended. Relying on the prior case of Alison D. and New York Domestic Relations Law § 70, the Family Court of Chautauqua County determined that the non-biological parent lacked standing to petition for visitation of the child. Upon review, the Appellate Division affirmed the decision.

Similarly, in the second case, a same-sex couple came to an agreement to have a child through artificial insemination, after which the relationship ended. However, in this particular action, the biological parent had previously sought child support from the non-biological parent. The Family Court of Suffolk County granted the biological parent’s support petition, and used that in their determination that the doctrine of judicial estoppel was sufficient to find that the non-biological parent could be granted visitation/custody. The Appellate Division affirmed the decision noting that any custody/visitation rights would not have been sufficient under Domestic Relations Law § 70 and the case of Allison D., however the doctrine of judicial estoppel was satisfied.

In a review of the cases the Court of Appeals referenced in the opinion, the court determined that a biological, non-adoptive "parent" was estopped from disclaiming parentage and made to pay child support. The Court of Appeals noted the disparity in the ability to enforce child support on such "parents," while also denying their right to seek custody. The Court further stated, "by fixing biology as the key to visitation rights, the rule of Allison D. has inflicted disproportionate hardship on the growing number of nontraditional families across the state." Demographic changes have transformed the elusive concept of the, "average American family," and therefore the court gathered that the fundamental concept of "the best interest of the child" is being affected by such changes. Consequently, the court concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.

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