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Roberta K. Feldman

Landmark case from New York’s highest court expands definition of what it means to be a parent.

The Court held that a “non-biological, non-adoptive parent” has standing to petition for custody and visitation.

NY's Highest Court Expands Definition of ParentThe Court of Appeals issued a ruling on August 30, 2016 entitled In the Matter of Brooke S.B. vs. Elizabeth A. C.C. (28 NY3d 1, 2016 NY Slip Op. 05903) which overturned the case of Matter of Alison D. v. Virginia M. (77NY2d 651, 572 NE2d 27, 569 NYS2d 586) decided in 1991. In Matter of Alison D., the Court of Appeals held that in an unmarried couple, a partner without a biological or adoptive relation to a child is not the child’s “parent” for purposes of standing to seek custody or visitation under New York law.

Two separate cases were heard by the Court of Appeals resulting in the Matter of Brooke S.B. decision. The first case involved a lesbian couple who entered into a relationship in 2006 and announced their engagement to marry. At that time, they could not legally marry in New York. The couple decided to have a child which was accomplished through artificial insemination. The women lived together and raised the child jointly sharing in all major parental responsibilities. The parties’ relationship ended in 2010 and the woman who had given birth to the child terminated any contact by the other with the child.

In the second case, the parties registered as domestic partners and thereafter agreed to have a child. One of the women gave birth to the child as a result of artificial insemination and again, several years later after the couple split, visitation was denied.

The Court held that a “non-biological, non-adoptive parent” has standing to petition for custody and visitation. Referencing “increasingly varied familial relationships” and the “trauma that children suffer as a result of separation from a primary attachment figure-such as a de facto parent-regardless of that figure’s biological or adoptive ties to the children,” the Court overturned the definition of a parent that has been in place for 25 years.

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