On August 30, 2016 in a landmark case, the New York State Court of Appeals ruled that non-biological, non-married, non-adoptive parents can seek custody and visitation of a child born within their relationship, with the biological parent’s consent.
The huge impact of such a ruling cannot be overstated. The case has substantial ramifications for parents of same-sex couples, as well as couples who never married and later split up. Previously, individuals in either circumstance were treated as if they were total strangers to the child in the eyes of family court, and had no legal standing to seek custody or visitation. Now, thanks to this case, “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.”
The case involved Brooke B., a non-biological lesbian mother who sought shared parenting time and financial responsibility for a child that she and her former partner planned for and raised together. The couple was engaged to be married, but at the time New York did not allow same-sex marriage. Despite being unable to marry, they agreed for Elizabeth C. to use an anonymous donor to become pregnant. The couple gave birth to a son, who was given Brooke’s last name on his gift certificate. Brooke, Elizabeth, and the child lived together as a family, with Brooke contributing to daily care of the child as well as taking care of his doctor appointments and other wellness requirements. The couple later broke off their engagement and Brooke moved to a home nearby where she continued in her role as a mother. Three years later, Elizabeth refused to allow Brooke any contact with their son. When Brooke filed for custody and visitation, her case was dismissed because she was the non-biological and non-adoptive parent of a son born into an unmarried relationship.
Brooke’s case highlights, and fixes, a major flaw in New York family law. The standard for awarding custody and visitation is that the court will do so if it is in the best interest of the child. Prior to this case, Brooke would have been denied custody and visitation despite having a significant and involved relationship with her child; clearly in cases such as these, denying custody and visitation was not in the child’s best interest, yet the court persisted. Now, thanks to this landmark case, non-biological, non-adoptive, and unmarried parents have the same standing to seek custody and visitation as a biological, adoptive, or married parent.
Stacy Sabatini, Esq.: New York custody and visitation lawyer
If you are seeking custody and visitation rights and live in Rockland, Orange, or Westchester county, the experienced family lawyers at the Law Offices of Stacy Sabatini, Esq. can help you protect your parental rights. For your initial consultation at our New City, New York office, contact us online at www.sskfamilylaw.com.
