Changes to Who is a Parent and Who Can Seeking Custody or Visitation

Today, New York’s highest court, the Court of Appeals, drastically changed the laws regarding the definition of “parent” for purposes of custody and visitation litigation.  According to the holding in Brooke S.B. v. Elizabeth A. C.C., a party who proves “by clear and convincing evidence” that the “parties agreed to conceive a child and to raise the child together” shall be deemed a parent for purposes of seeking custody or visitation.  In doing so, the Court specifically overturned a prior case called In the Matter of Alison D. v. Virginia M. because that case established law that had since become “unworkable” and was not in harmony with recent changes to the law including the United States Supreme Court’s decision in Obergefell v. Hodges.

Prior to today’s holding, as a general rule, a party who had raised a child with the child’s biological parent may be prevented from seeking custody or visitation unless the non-biological parent could prove “extraordinary circumstances” such as persistent neglect or unfitness.  This was seen as an unduly difficult standard.  In many cases involving same-sex couples fighting over custody and visitation, the biologically-unrelated parents was left without any rights whatsoever.  Today’s decision attempts to remedy this issue facing many same sex couples.

Of particular interest are statements from the Court that today’s holding may not be the only test for standing in cases a “parent-like relationship.”  This decision addressed only situations where the parties agreed “to conceive and raise the child as co-parents.”  The Court, very intentionally, left open the question of what a litigant prove to establish standing “in situations in which a couple has not entered into a pre-conception agreement.”

Some commentators questioned whether the Court of Appeals would allow for a child to have more than two parents.  The Court, in today’s decision, was very careful to point out that the language of Domestic Relations Law §70 “clearly limits a child to two parents, and no more than two, at any given time.”