US: NY High Court Rules Non-Biological Parents Can Seek Custody and Visitation

ny_state_supreme_courtbOn 30th August, 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.

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.

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.

“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”.

Sommer added:

“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”.

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

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.

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