Victory! New York High Court Rules Non-Biological Parents Can Seek Custody and Visitation

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August 30, 2016
Susan Sommer, National Director of Constitutional Litigation at Lambda Legal (L), with Lambda Legal client Brooke B. (R).
Susan Sommer, National Director of Constitutional Litigation at Lambda Legal (L), with Lambda Legal client Brooke B. (R).

Today the New York State Court of Appeals ruled that non-biological, non-married, non-adoptive parents can seek custody and visitation of children who were born into their relationships with the consent of the child’s biological parent.

The decision comes in a case Lambda Legal co-counseled with Blank Rome LLP and The LGBT Bar Association of Greater New York on behalf of Brooke B., 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 were engaged to marry but separated before New York’s marriage equality law passed in 2011.

“This is a landmark change in New York for children born to same-sex and other couples who couldn’t or didn’t marry and who later split up, without any protection under the law for the critical ongoing relationships between the non-biological parents and their children,” said Susan Sommer, National Director of Constitutional Litigation at Lambda Legal.

VICTORY! Lambda Legal on the Case: Brooke B.

“Prior to today’s decision, New York law on this issue was tragically stuck in 1991, when the Court of Appeals ruled in the Alison D. case that non-biological, non-married, non-adoptive parents are legal strangers to the children they raised with a same-sex partner.”

Writing for the majority, Judge Abdus-Salaam said: “[T]oday, 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” New York’s Domestic Relations Law.

“We are extremely gratified that Brooke will finally have her day in court to establish that she is the parent of the son she cherishes. We are eager for them to be reunited as soon as possible. The attorney for the child in the case has led the charge in the courts to have the boy reunited with his second parent,” Sommer added.

The Court’s ruling also applies to a second case, Estrellita A. v. Jennifer L.D., raising similar issues.

Lambda Legal represents Brooke B., along with Blank Rome LLP and The LGBT Bar Association of Greater New York, in her effort to continue to parent the six-year-old son she and her former partner, Elizabeth C., planned to have together.

Brooke and Elizabeth met in 2006 and made a home together in 2007 in a small town in upstate New York. Brooke gave Elizabeth a ring, and they became engaged with the hope of marrying as soon as it was legal for them to do so in their home state. Even though they couldn’t marry, they wanted to start their family immediately. They agreed that Elizabeth would carry the child, and Elizabeth became pregnant in September 2008 using an anonymous donor.

When he was born, Brooke was there with Elizabeth in the delivery room and cut their son’s 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 co-parent their son in her nearby home, dividing responsibility for his care and bringing him to doctors’ appointments and daycare. 

In the fall of 2013, Elizabeth abruptly cut off contact between Brooke and their son. In November of that year, Brooke filed for custody and visitation. The family court, acknowledging that the situation was “heartbreaking,” nonetheless ruled its hands were tied based on the decision in Alison D., and the court dismissed Brooke’s complaint. The appellate court affirmed the lower court decision.

The child’s attorney, R. Thomas Rankin, with appellate co-counsel Warshaw & Burstein, LLP, pressed the Court of Appeals to take the case. The Court of Appeals accepted the case on appeal, along with a second case, Estrellita A. v. Jennifer L.D., raising similar issues where a lesbian non-biological parent had been ruled obligated to pay child support and then argued that, based on that ruling, she was entitled as a parent to seek custody and visitation with the child.

Lambda Legal argued in the Court of Appeals  that New York’s legal standards were inconsistent and did not account for the myriad ways that people make families, including same-sex couples. Considering non-biological parents “legal strangers” to the children they planned for and cared for since birth disregards the best interest of the child, which should prevail for children of same-sex couples as well as for other children. Today New York’s highest court agreed.

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

Read the press release.