Child Custody Considerations: Are You My Mother? Part 2

Note: This article is the second part of a series. To read Part One, click here.

Families come in many shapes and sizes today, and the law has not kept up with medicine or social values that have created them. Until now.

You may be raising the child of your spouse or partner, caring for the child, supporting the child, having the child call you “Mom” or “Dad.”   But what happens if the relationship between the adults sours?   What are the rights of the “non”-parent?  On August 30, 2016, the New York Court of Appeals rendered a decision in the Matter of Brooke S. B. v. Elizabeth A. C.C., which now provides guidance on the custodial rights of non-parents.  We first told you about this case in our February 2016 Our Towne article.

The Brooke S.B. case involves two different same-sex couples who never married or entered in a civil union.  Both couples in the case were in a long-term relationship and agreed at some point to have a child together.  In each case, one partner carried the child while the other was active in the pregnancy in all other ways (attending doctors’ appointments, caring for the pregnant partner, attending the birth of the child and cutting the umbilical cord, etc.).  In each case the couple lived with and raised the child together, and the child continued to have contact with the non-biological “parent” even after the couple broke up and physically separated.

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In each case, the child referred to the biological parent as “mom” and the other “parent” as “mama” (even though the non-biological “parent” had not adopted the child).  When the relationship between each couple deteriorated, the biological parent cut-off the other “parent” from having access to the child.   The non-biological, non-adoptive parent in each case petitioned the court to seek custody and/or visitation with the child.

The Court of Appeals was asked to decide in each case whether the former partner, who had no biological tie to the child (and who had not adopted the child), could be considered a “parent” within the meaning of Domestic Relations Law Section 70 such that she had a right to seek custody of, or visitation with, the child.  The Court answered that question in the affirmative.  The Court specifically overruled the prior case on the rights of non-parents (known as the Alison D. case), and held 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 the right to seek visitation and custody under the Domestic Relations Law Section 70.

While the Court of Appeals has now provided guidance on the rights of non-adoptive, non-biological “parents” of children, the holding of the Court is a narrow one.  In order to ensure that the rights of the non-biological parent are protected under all circumstances, that person should take all steps to adopt the child because an adoptive parent has rights equal to a biological one.  For more information about custody, visitation, or adoption, contact our office.

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