Lambda Legal Urges New York High Court to Protect Legal Bond Between Child and Non-Biological Mother

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June 2, 2016
From left: Lambda Legal's Susan Sommer and client Brooke B. at the New York State Court of Appeals this morning.

Lambda Legal argued today before New York State's highest court on behalf of a non-biological lesbian mother who is seeking shared parenting time and financial responsibility for a child she and her former same-sex partner planned for and raised together.

The couple planned to marry but separated before the marriage equality law passed in 2011.

The appeal was initiated by Attorney for the Child, and argued before the New York State Court of Appeals with support from co-counsel Blank Rome LLP and LeGal.

Lambda Legal client Brooke B. says:

"My son has two mothers, and he deserves the right to both of his parents. I’m here trying to make good on my promise to love and care for him for the rest of my life. I want to make sure that our son knows that I love and support him forever."

Susan Sommer, Lambda Legal's Director of Constitutional Litigation, says:

"New York law on this issue is stuck in 1991, when the Court of Appeals ruled in Alison D. v. Virginia M. that non-biological, non-married, non-adoptive parents have no claim to protect their parental relationships with children they raised with a same-sex partner. It’s long past time for that to be corrected and clarified.

"This heartbreaking case calls on our high court to address the best interests of the child — and all children like him — by recognizing and preserving his relationship with the person he has always known as one of his mothers, his Mama B.

"This boy needs his mother. New York should recognize and protect the parent-child relationships of children reared by parents with no biological ties. Thanks to New York’s Marriage Equality Act and the U.S. Supreme Court’s recent marriage rulings, our State and our nation have a deeper understanding that same-sex couples form families and parent children together, and deserve legal respect and protections for these bonds.

"We hope for a high court decision that will save this six-year-old child from the tragic loss of his mother and bring the law in line with the reality for many New York families."

The child’s court-appointed attorney also asked the court to give Brooke the opportunity to protect their relationship.

Lambda Legal represents Brooke S.B. in her effort to continue to parent the six-year-old son she and her former partner, Elizabeth C.C., planned to have together. Brooke and Elizabeth met in 2006, and they made a home together in the small upstate New York town  in which they lived, in 2007.  Brooke gave Elizabeth a ring and they became engaged with the hopes that they would marry as soon as it became legal for them to do so in their home state.

Even though they couldn’t get married, they wanted to start their family immediately. They agreed that Elizabeth would carry the child, and she became pregnant in 2008 using an anonymous donor. When he was born, Brooke was there with Elizabeth in the delivery room, and Brooke cut the umbilical cord. The name they chose for their son—with Brooke’s last name—was on his birth certificate and both Elizabeth and Brooke are named as his parents on his birth announcements and baptism certificate.

From the start, Brooke fed him, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. To his doctor, his day care, the pastor who baptized him, Brooke is one of his mothers. When the couple’s relationship ended in 2010, Brooke continued to parent their son. He spent several nights a week with Brooke, time with both of his mothers on major holidays, and visits with Brooke’s parents—his grandparents. Brooke continued to bring him to doctors’ appointments and daycare, and still provided for him financially.  

In 2013, Elizabeth abruptly cut off contact between Brooke and their son, requiring Brooke to file for custody and visitation.  The family court determined its hands were tied based on the high court’s decisions in 1991 in Alison D. and in a subsequent parenting case in 2010, Debra H. v. Janice R.  The court dismissed Brooke’s petition despite the couple’s inability to marry during the time of their relationship and the lack of resources to adopt. The appellate court affirmed the lower court decision. After the Attorney for the Child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Today, Lambda Legal argues that the prevailing New York legal precedents do not account for the myriad ways that people make families, including same-sex couples, and that to consider non-biological parents “legal strangers” to the children they have cared for since birth is not in the best interest of these children. New York’s passage of the Marriage Equality Act and the U.S. Supreme Court’s 2015 marriage ruling in Obergefell v. Hodges call for greater respect for the families formed by same-sex couples and their recognition as full-fledged parents of their children.

Many prominent legal and child welfare experts have filed friend-of-the-court briefs on the side of Brooke and her son, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, and 45 family law academics on the faculty of every law school in New York State.