Same Sex Couples Can Now Seek Custody or Visitation

By October 10, 2016all

The right to be with your child, along with rights to care and supervision, are some of the most basic liberties we enjoy.  We can all agree that, assuming basic fitness of the parents, nothing should stand in the way of these rights, even after the parents break up.  Unfortunately, as a society, we have not always agreed on who gets to be called “parent.” Until recently, only the biological parent in a same sex union could claim the title – and with it, all the rights – of being a parent after a break up, unless the parties were married or the non-biological partner had adopted the child.  The result of this imbalance in the rights of the parties was often trauma to the children, who were separated forever from a de facto parent because she (or he), lacking the legal status of parent, could not sue in court for any access – not even visitation.   Thankfully, the New York Court of Appeals (NY’s highest court) in the landmark case Matter of Brooke S.B. just fixed the problem by expanding the definition of a parent.   Now same sex couples who have a child out of wedlock can enjoy the same rights as heterosexual couples, regardless of marriage or adoption, if the non-biological partner can prove that the parties had agreed, before the conception of the child, to conceive and raise the child together.

It is important to note that the new right created by Matter of Brooke S.B. is the right to sue for custody or visitation.  This right, called “standing,” is not the same thing as the right to custody or visitation.  A same sex partner can earn the right to sue for custody by proving there was an agreement to raise the child, but if a court then determines that custody or visitation is contrary to the child’s best interests, access to the child can still be denied.  As in all custody and visitation cases, the best interests of the child remains the court’s paramount concern.

Both of the companion cases decided in Matter of Brooke S.B  involved lesbian couples who had agreed to have a child prior to conception; in both cases the non-biological partners were intimately involved at every stage — through pregnancy, birth, and all aspects of child rearing.  Indeed, they did everything except adopt the children.  Not surprisingly, a strong bond had developed between the children and their non-biological parents.  Because of the facts before it, the Court was able to fashion a very limited expansion of the definition of parent.  Only non-biological partners fortunate enough to have made an actual agreement prior to conception — who are able to prove the existence of the agreement by clear and convincing evidence — are included in the new definition of parent.

The Court could have fashioned a broader rule (perhaps not requiring the agreement to be made pre-conception, or basing standing on some functional definition of parent), but it was understandably reluctant to open the door wide on who can qualify to sue for custody in light of the biological (or adoptive) parent’s competing rights.  In the absence of unfitness or other extraordinary circumstance, parents (both biological and adoptive) retain the fundamental right both to supervise their children, as well as to exclude others from their children’s lives.  Under these circumstances, the new rule in Matter of Brooke S.B  represents the Court’s effort to strike a balance between, on the one hand, the right of children who have developed a bond with a non-biological parent to continue that relationship and, on the other hand, the right of the biological (or adoptive) parent to exclude the other.  In recognition of the strength of this right to exclude, only a limited exception was created.

From a legal perspective, Matter of Brooke S.B  is important not only for the new right it creates, but also for the way it created it.  Only in the rarest of cases is a prior decision of an appellate court overruled by that same court.  Here, the Court of Appeals overruled its prior decision in a 1991 case called Allison D.  In that case, the Court concluded it was barred by the state legislature from expanding the definition of parent to include non-biological, non-adoptive same sex partners.  It reached this conclusion by analyzing the statute which confers the right to sue for custody upon a “parent” (but does not actually define the term parent)(DRL sec. 70), and the statutes that provide grandparents and siblings the right to sue for custody and visitation (DRL sections 71 and 72).  The Court in Allison D.  had reasoned that if the legislature had meant to give non-biological, non-adoptive partners the right to sue for custody or visitation, it would have done so explicitly, as it did with siblings and grandparents.

The legal significance of overruling Allison D. is that the Court of Appeals decided it is no longer tethered to the state legislature’s intent in defining who can be a parent.  It did so by re-discovering its inherent power, as a “court of equity,” to create rights and obligations, including the definition of the term parent, that best serve the best interests of children.

The practical significance of this new (actually old) approach, is that the definition of parent can now more easily change again.  Having recognized its power to “do equity” in a situation involving the needs of children, the Court can now further expand the definition of parent.  In fact, at the conclusion of the majority opinion in Matter of Brooke S.B. the Court hinted that, in a proper case, it could employ a legal principle called “equitable estoppel” to estop (or preclude) a biological or adoptive parent from denying standing to a former partner in a custody or visitation case.  By definition, the estoppel principle applies where the child has relied on her (or his) biological/adoptive parent’s course of conduct in having a serious longstanding relationship with the other partner, by developing a parent-child bond with the other partner.  If, after a break up, harm (or “prejudice”) to the child is caused by his/her being denied access to the other partner, the non-bio/non-adoptive partner can invoke equitable estoppel to obtain standing.  Although the Court of Appeals essentially used this principle to create the new standing rule in Matter of Brooke S.B  it did not explicitly authorize courts to apply equitable estoppel on a case-by-case basis.
Of course, while it may not be the rule in New York yet, it may be soon.

It will be interesting to see how lower courts — in particular the New York Supreme Court, which is the lowest level New York court with equity powers (the Family Court is not a court of equity) — approach cases with similar, but not exactly the same facts as Matter of Brooke S.B.  Will equitable estoppel be liberally applied to all cases in which a petitioning non-biological “parent” can prove there was a relationship with the child?  Or will the lower courts limit the application of equity to cases that present facts substantially similar to those in Matter of Brooke S.B. ?  Frankly, it may depend on how heartbreaking the facts are.  Only time will tell.

Clifford Petroske

About Clifford Petroske