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Child CustodySame-Sex Custody in New York: Non-Biological Mom Can Seek Custody

November 16, 2016

Just as the definition of marriage has evolved in New York to include same-sex couples, so has the definition of family.   It is now common for a married same-sex couple to have children and, like heterosexual couples, when the relationship sours, custody battles ensue.

Until recently, the existing law in New York was that a non-adoptive, non-biological caretaker lacked standing to seek custody or visitation of a child born of a same-sex relationship. This rule could lead to heart-breaking results.  Since only one of the same-sex “parents” could be the biological parent and, absent a second parent adoption, the non- biological parent would be foreclosed from any parental rights if the relationship dissolved. In essence, when the same-sex relationship ended the child was ripped away from one of his parents.

A Recent Same-Sex Parent Child Custody Case

Fortunately, the New York courts have signaled a softening of this rule. In the recent case of Brooke S.B. v. Elizabeth A. C.C., the Court of Appeals held that under certain conditions, the non-biological parent would have standing to seek custody of the child born during the relationship.   The court explicitly stopped short of holding that all non-biological parents in a same-sex marriage would have standing to seek custody of children born during the marital relationship.

In Brooke S.B. v. Elizabeth A. C.C, the couple began their relationship in 2006.  Though engaged, they did not legally wed in New York or any jurisdiction that recognized same-sex marriage.  In 2008, Elizabeth became pregnant with their child through artificial insemination. Though Brooke had no legal or biological ties to the child, she maintained a close relationship with him for years, cut his umbilical cord at birth, gave the child her last name, and raised him jointly with Elizabeth.

In 2010, the couple ended their relationship.  Later, Elizabeth tried to cut off Brooke’s contact with the child. Brooke sought custody and/or visitation, but her petition was dismissed.  The distressed trial court, bound by precedent, found that Brooke had no rights to the child since New York did not define a non-adoptive, non-biological caretaker as a parent.

As the Court of Appeals opined on the existing law:

. . . basing custody rights on biology inflicted disproportionate hardship on the growing number of nontraditional families across our state . . .

Under the current legal framework, which emphasizes biology, it is impossible—without marriage or adoption—for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child (see Alison D., 77 NY2d at 656). By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption

A New Test For Same-Sex Parents Seeking Custody

In viewing the facts of this case, the Court of Appeals noted that both Brooke and Elizabeth had specifically agreed to jointly conceive and raise the child. Therefore, the Court concluded 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 stopped short of declaring that all same-sex spouses have standing to assert their parental rights.   Instead, the court held that:

Whether a partner without such an agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel are matters left for another day, upon a different record.

In this regard,  the court is holding same-sex couples to a higher burden than their heterosexual counterparts; in the case of heterosexual partners, it is presumed that a child born during the marriage is the legitimate product of the parties and they both can assert their parental rights to the child.  This is one of the strongest legal presumptions.

Same-sex couples, have to first establish they have standing to petition custody by virtue of a pre-conception agreement. Only if they can prevail on this ground, they then can seek custody or visitation.   As the court concluded:

. . . we stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.

Please contact us if you have custody or visitation issue.


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