October 01, 2016

New York Court of Appeals Allows Standing for a Nonbiological, Nonadoptive Partner to Seek Visitation and Custody

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Brooke S.B. v. Elizabeth A. C.C., 2016 WL 4507780 (N.Y.). 

The New York Supreme Court consolidated two cases in which nonbiological, nonadoptive partners lived, planned to conceive a child, and shared parental responsibilities raising that child with the biological parent. The court granted nonbiological, nonadoptive partners standing to seek custody and visitation if they prove they agreed with the biological parent to conceive and raise the child as co-parents. 

In 1991, New York Court of Appeals defined “parent” to require a biological or adoptive relation to the child. Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. Ct. App. 1991). If the partner did not meet this definition they were denied standing to seek visitation or custody. The court examined two cases challenging this definition. 

In the first case, Brooke and Elizabeth jointly decided to have a child that Elizabeth would carry. Brooke was involved during the pregnancy and they raised the child together after birth, sharing all major parental responsibilities. For the first year, Elizabeth worked while Brooke stayed at home with the child. Eventually, Brooke and Elizabeth’s relationship ended. Elizabeth briefly allowed Brooke to visit the child, but upon termination of those visits Brooke filed to receive joint custody and regular visitation. Brooke did not adopt the child and therefore was denied standing and her motion was denied. 

In the second case, Esterllita and Jennifer decided after four years together to register as domestic partners and have a child.  They jointly decided Jennifer would bear the child, but the donor would have Esterllita’s ethnicity. For three years Esterllita and Jennifer raised the child and shared parental responsibilities. When Esterllita and Jennifer ended their relationship, Jennifer and the child moved out and Esterllita continued to have contact. The family court granted Jennifer’s request for child support finding Esterllita was “a parent.” Esterllita used this child support decision to support her case for visitation. During the visitation hearing, the court acknowledged Esterllita’s lack of standing under Alison D., but used the doctrine of judicial estoppel to grant standing and allow visitation with the child. 

In applying the doctrine of judicial estoppel, the family court found “a party who assumed a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed.” In this case, Jennifer wanted Esterllita to be found as a parent for her child support payments, but did not want her to be a parent to determine visitation. 

A parent’s right to seek visitation or custody in New York is derived from the state’s Domestic Relations Law § 70. This statute provides standing for either parent, but does not define parent. The law instructs the court to make its determination on “solely what is best for the interests of the child and what will best promote its welfare and happiness.” The court in Alison D. defined “parent” based on the need to preserve the rights of biological parents. Another case four years later, Matter of Jacob, 660 N.E.2d 397 (N.Y. Ct. App. 1995), found the court must stay true to the statute’s legislative purpose, which was the child’s best interest. 

The New York Appeals Court felt Alison D. created a definition of “parent” in this context that was founded on ideas of heterosexual parenting that was unsustainable and created a disproportionate hardship on the increasing number of nontraditional families in the state. While the court felt it must protect substantial and fundamental rights of biological or adoptive parents to control the upbringing of their children, it also recognized the need to address who qualifies as a parent with those rights. The court decided Alison D. created a bright line, overly restrictive definition that did not consider equitable principles and set the bar too high to reach a child’s best interest.

The court did not create another bright line rule for when standing may be granted.  Rather, it identified limited circumstances in which a nonbiological, nonadoptive parent may have standing to seek visitation and custody based on a preconception agreement with the biological parent to conceive and raise the child as co-parents. The court acknowledged that a partner may still have standing even when there is no preconception agreement but declined to rule on that issue.  

A concurring opinion stated a preference that Alison D. not be overruled, but instead allow for an “extraordinary circumstances” determination. This approach would defer to the legislature to define terms and expand the definition of “parent.”