On August 30, 2016 the highest court in New York State expanded and changed the definition of the word “parent”. In two companion decisions the New York State Court of Appeals decided that a person lacking both a biological connection, or an adoptive connection to a child may still be considered a parent for purposes of seeking custody and visitation. Before issuing these two decisions, the law had been that with an unmarried couple, the partner without a biological or adoptive relationship to a child was not considered the child’s “parent” under the law and could not seek custody or visitation of the child under Domestic Relations Law, Section 70 (a).
In Matter of Brooks S. B. v. Elizabeth A.C.C., a same sex couple, not legally married, jointly decided to have a baby and further decided Respondent would be the biological parent. This couple lived together with their child until the child was three years old, at which time their relationship ended and the non-biological parent’s contact with the child was cut off by the Petitioner. The non-biological party did not adopt the child.
In Matter of Estrellita A. v. Jennifer D., a same sex couple registered as domestic partners and agreed to have a child. The couple decided that one of them would carry the baby and that the male donor would be of the same ethnicity as the other partner. This couple lived with the child as family for four years. Again, the non-biological party did not adopt the child. When the relationship ended, the biological mother filed for child support against her ex-partner and won under the legal theory of “estoppel”, that is, since the ex-partner held herself out as the child’s parent and the child thought of her as her mom, the ex-partner was considered a legal parent for child support purposes. However, when this “legal parent” filed a petition for custody and visitation of the child, the biological mother argued her ex-partner was not a parent because she had no biological or adoptive relationship with the child.
Domestic Relations Law Section 70 does not define the word “parent”, but it requires that only a parent can petition for custody or visitation. The overriding interest in all custody and visitation cases is always “the best interests of the child”. Relying on that equity and departing from 25 years of a more restrictive definition of “parent”, the Court of Appeals decided that “where a petitioner proves by clear and convincing evidence, that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.” The court did not decide what to do if a biological or adoptive parent agrees to create a parental relationship between his or her partner and the child after the child’s conception.
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