On August 30, 2016, the New York Court of Appeals issued a landmark decision in In the Matter of Brooke S.B. v. Elizabeth A. C.C.. As a result, New York now recognizes that children may have a second parent not related to them by blood, adoption, or marriage.
The Brooke S.B. case involved Brooke and Elizabeth—unmarried partners in a lesbian couple—who were engaged to be married in 2007. In 2008, Elizabeth became pregnant through artificial insemination and gave birth to a baby boy. Brooke had no legal or biological ties to the child, but she maintained a close, parental relationship with him for years, which included giving him her last name and raising him jointly with Elizabeth.
The couple separated in 2010, and in 2013, Elizabeth began restricting Brooke's contact with the child, so Brooke filed for custody. A lower court denied her request under a long-standing precedent established in Matter of Allison D. v. Virginia M. (77 N.Y.2d 651 (1991).) Under the Allison D. case, New York's definition of a parent did not include non-adoptive, non-biological caretakers. The Allison D. case held that in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's parent for purposes of standing (the right) to seek custody or visitation under New York Domestic Relations Law § 70, notwithstanding an “established relationship with the child.” This means that non-biological, non-adoptive parents in an unmarried couple had no right to seek custody or visitation of any children they may have treated as their own, even if they could prove a long-established parent-child relationship. So, for example, an unmarried partner could raise a child for 13 years, and be denied the right to ever see that child again in the event the partnership ended.
The Brooke B. ruling has changed this outcome: the New York Court of Appeals overturned the Allison D. case, writing that “the definition of ‘parent' established by this Court 25 years ago in Allison D. has become unworkable when applied to increasingly varied familial relationships.” The court held that now, where a partner in a unmarried relationship “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 Domestic Relations Law Section § 70” just as any other parent could.
Since the laws on parentage are not settled in every state, unmarried, same-sex couples that plan to have a family together, should find out how their state's laws protect second parents: through second parent adoptions, the Uniform Parentage Act, or using private agreements, which may set forth the couple's intent to conceive and/or raise a child together. For more information on this, see A Legal Guide for Lesbian and Gay Couples, by Frederick Hertz and Emily Doskow.