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.