New York High Court Redefines `Parent'

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By Julianne Tobin Wojay

Sept. 6 — Casting aside 25 years of precedent, New York's highest court Aug. 30 ruled that where a biological parent's partner shows that the couple had agreed to conceive and raise a child together, the partner has standing to later seek visitation and custody with that child under state law ( Brooke S.B. v. Elizabeth A.C.C., 2016 BL 282024, N.Y., No. 91, 8/30/16 ).

Court of Appeals Judge Sheila Abdus-Salaam said the rule promulgated Alison D. v. Virginia M., 569 N.Y.S.2d 586, 17 FLR 1319 (N.Y. 1991)—that in the case of an unmarried couple, a partner without a biological or adoptive relation to a child is not the child's “parent” for purposes of standing to seek custody or visitation under state law, notwithstanding their “established relationship with the child”—is no longer a workable definition of parent “when applied to increasingly varied familial relationships.”

Monumental, Sweeping, Overdue

New York attorney Robert Preston, co-chair of Greenspoon Marder PC's matrimonial and family law practice group, called the decision “nothing short of monumental, sweeping and long overdue.”

In a Sept. 2 e-mail to Bloomberg BNA, Preston said it was “difficult to fathom how and why it took 25 years for New York—the purported bastion of nontraditional, forward thinking—to recognize as a matter of law that a `parent' is oftentimes more than the mere results of a DNA test or formally signed adoption papers.”

Observing that the Court of Appeals “often sidesteps family law decisions tending to broaden longstanding, foundational definitions whereby the net effect is a real or perceived `opening of the floodgates',” he said that with the ruling here, the court “courageously reversed itself by using its inherent equitable powers.”

When asked why it took so long for the court to act on this issue, Preston explained that because “so many cases settle or end before an issue appealable to the Court of Appeals presents itself, it often takes years for a case with the appropriate set of facts to come along and give the Court an opportunity to rethink a prior holding.”

Doesn't Solve Everything

Also reacting to the ruling, Allen A. Drexel, of Drexel LLC, New York, in a Sept. 2 e-mail to Bloomberg BNA called it a “lucid and common-sense” decision.

Drexel, a member of the Executive Committee of the New York State Bar Association’s Family Law Section and co-chair of its Marriage Equality Committee, said that the ruling “significantly reduced but does not quite eliminate” Alison D.'s “fatal flaw”—the denial of standing to de facto parents.

This case, he said, “rectifies the problem, but only for the de facto parent who can prove, by clear and convincing evidence, that he or she entered into a `pre-conception agreement' with the biological mother to conceive and raise a child as co-parents.”

Drexel said it does not resolve “the situation of the many non-biological, non-adoptive parents who, with a biological mother’s consent, assumed their co-parenting roles and responsibilities after a child’s conception,” an issue the court reserved for another day.

He also said that while the decision “has been regarded as a great gay rights victory, and rightly so, [ ] it is more than that, for the holding [ ] explicitly extends to both same- and opposite-sex couples.”

Noting that the decision's custody ramifications have attracted the most commentary, Drexel emphasized that parties who are granted standing will be deemed legal parents under New York law, with “all of the rights and responsibilities incident to parentage,” including the payment of child support.

Critical Term

In her opinion, Abdus-Salaam observed that while only a “parent” may seek custody or visitation under N.Y. Dom. Rel. Law § 70, the statute “does not define that critical term, leaving it to be defined by the courts.”

In Alison D., she said, “we supplied a definition.”

“We decided that the word `parent' [ ] should be interpreted to preclude standing for a de facto parent who, under a theory of equitable estoppel, might otherwise be recognized as the child's parent,” Abdus-Salaam said, noting that Alison D. involved an unmarried lesbian couple who agreed that one partner should conceive a child by artificial insemination to be raised by them jointly.

Needlessly Narrow

However, she said, “in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape to inequitable results dictated by a needlessly narrow definition of the term `parent',” that rested on biology.

See In re Jacob, 636 N.Y.S.2d 716, 22 FLR 1003 (N.Y. 1995) (adoption by unmarried mother's partner); Shondel J. v. Mark D., 820 N.Y.S.2d 199, 32 FLR 1424 (N.Y. 2009) (paternity by estoppel); Debra H. v. Janice R., 904 N.Y.S.2d 263, 36 FLR 1303 (N.Y. 2010) (parentage created by same-sex couple's Vermont civil union).

“Moreover, Alison D.'s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York, and the U.S. Supreme Court's holding in Obergefell v. Hodges,” 135 S.Ct. 2584, 41 FLR 1411 (U.S. 2015), Abdus-Salaam said.

Consent Is Key

While thus holding that § 70 “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation,” she also recognized the need to protect a legal parent's substantial and fundamental right to his or her child.

This factor, she said, “makes the element of consent of the biological or adoptive parent critical,” and “requires us to specify the limited circumstances in which [ ] a person has standing as a `parent' under” § 70.

Noting the suggestion that the court endorse a functional test for standing (see In re H.S.H.-K., 533 N.W.2d 419, 21 FLR 1391 (Wis. 1995); Conover v. Conover, 2016 BL 217903, 42 FLR 1411 (Md. 2016)), she said, it was not necessary to adopt a test in this case.

Here, she said, because the children at issue are the result of the same-sex parties' alleged “pre-conception agreement to conceive and raise a child as co-parents [ ] the conception test applies.”

The allegations of such an agreement, “if proven by clear and convincing evidence, are sufficient to establish standing,” she said.

Chief Judge Janet DiFiore and Judges Jenny Rivera, Leslie Stein and Michael Garcia concurred. Judge Eugene Fahey took no part.

Should Be Up to Legislature

While concurring in the result as to the two cases before the court, Judge Eugene F. Pigott Jr. did not join in the majority's opinion overruling Alison D., noting that state lawmakers have never altered the definition of parent applied in that case.

The appellant in No. 91 was represented by Eric I. Wrubel, of Warshaw Burnstein LLP, New York, N.Y., and the respondents by Susan L. Sommer, Lambda Legal, and Sherry Bjork. In No. 92, the appellant was represented by Christopher J. Chimeri, of Quatela Hargraves & Chimeri, PLLC, Long Island, the respondent by Andrew J. Estes, of Kramer Levin LLP, New York, and the child by John B. Belmonte.

To contact the reporter on this story: Julianne Tobin Wojay in Washington at

To contact the editor responsible for this story: David Jackson at

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