Are You My Mother? Custody Considerations in New York State

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

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?  While several states do allow for custodial rights by a non-parent, there is no legislation in New York which provides for that.  However, there is some current (and potentially future) case law which may help you in this situation.

In order for a non-parent to obtain custody from a parent[1] one has to prove extraordinary circumstances, such as abandonment, surrender, or neglect.   But what if the “parent” is a perfectly good one?

The leading case on this issue[2] is now over 20 years old.  In that case, there was a biological and non-biological mother and the court held that there was a “bright line rule” that would not allow the non-biological mother to obtain custody, absent extraordinary circumstances.

That case was somewhat modified[3]  when a biological mother gave birth one month after her [Vermont] civil union to the non-biological mother.   The biological mother had been impregnated by an anonymous donor, so there was not a father in issue.  As the civil union conferred rights on the non-biological mother, the court allowed her to proceed with her custody case.

A case has been recently decided[4] which is now moving to the Court of Appeals, the highest court in New York State.  In that case, there is a biological and non-biological mother and the non-biological mother was not allowed to proceed with her custody case.  The appeal is being moved forward by the Attorney for the Child, with the slant that custody is not the right of a “parent”, but the right of the child, who wants to see his “Mother”.  If the non-biological mother is entitled to pursue her case, it can open the door to many situations like this.   However, if the Court does not find in her favor, the restrictions in place from prior cases will still be the “law of the land” in New York and cut off the rights of non-parents.

 

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What can you do if you are in this place?  If the situation does not involve a second parent, take all steps to adopt the child.  An adoptive parent has rights equal to a biological one.   If your spouse or partner does not agree to an adoption, that may be a red flag in the relationship.

If there is a second parent, can their rights be terminated to allow you to adopt?  If the second parent is an involved one, you may have no recourse if your relationship ends, unless the courts or state legislature dramatically expands the rights of “non” parents.

Read more on this topic in part 2 of this article.

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[1]Either a biological or adoptive parent.

[2] Alison D. (77 NY2d 651)

[3] Deborah H. (14 NYS 3d 576)

[4] Brook S. B. v. Elizabeth A. C.C. (129 AD3d 1578)

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