Queer Parents Win a Battle, Not the War

In a landmark decision August 30, New York State's highest court reversed a 25-year-old precedent, which precluded people not related to a child by birth or adoption from seeking visitation with or custody of a child, irrespective of the bond that may have developed between them. But does the decision go far enough?

In the consolidated cases of Brooke S.B. vs. Elizabeth A. and Estrellita A. v. Jennifer L.D., unmarried women agreed that their respective partners would become pregnant through artificial insemination. In both cases, the nonconceiving parent shared in all of the major parental responsibilities, but when the relationships soured, the biological parents effectively terminated contact between the child and their former partners on the basis that they did not fall within the purview of a "parent" under the law. Ultimately, in Judge Sheila Abdus-Salaam's 27-page decision, the Court of Appeals held that where a petitioner can prove by "clear and convincing evidence" that an agreement exists with the biological parent to conceive and raise the child, the nonbiological, nonadoptive parent may assert standing to seek custody of and visitation with the child.

However, the court specifically left open the issue of whether a nonbiological, nonadoptive partner may seek custody of a child in a case where the biological or adoptive parent consented to the creation of a parent-like relationship but did so after conception. That, the court said, is a "matter left for another day."

So why didn't the Court of Appeals take an even broader approach to parenthood? Why not take a more functional view, which focuses more on the post-birth relationship between putative parent and child and less on the existence of a preconception agreement? In order to answer this question, we need to understand the competing interests at play in the line of cases, beginning with the court's 1991 decision in Alison D. v. Virginia M, which adopted the restrictive approach to parenthood in the first place.

In Alison D. and the cases that followed, the court was presented with similar fact patterns -- two unmarried women agreed that one would become artificially inseminated, they would both raise the child, and when the relationship deteriorated, the biological mother denied the nonbiological mother access to the child. The court, careful not to overstep its bounds, declined to expand the definition of "parent" because the judges felt it was a job more suitable for the legislature. After all, it was the legislature that expressly gave siblings and grandparents standing to seek custody and visitation, and if lawmakers thought additional, non-biologically related third parties should be able to assert the same claim, then surely they would have been expressly included in the statute.

When the issue arose again 19 years later in Debra H. v. Janice R., the court lauded the bright-line rule that parentage derives from biology or adoption, because it "promotes certainty in the wake of domestic breakups." To replace that rule with a nonobjective test to determine "functional" or "de facto parentage" would simply overburden the New York courts. In addition to the "best interest" determination, which the court must conduct in all custody cases to decide whether it is in the best interest of the child to award custody to a parent, the court would have to first conduct a threshold "equitable estoppel" hearing, to determine whether an individual's level of involvement tipped the scale in favor of parentage. This preliminary hearing, the court said, would be "contentious, costly, and lengthy."

When considering the Court of Appeals' concerns regarding judicial activism and judicial economy, it is not difficult to see why the concept of "parenthood" was not expanded to include nonbiological or nonadoptive partners who consented to a parent-like relationship after the child's conception. However, it must be noted that courts in other jurisdictions have adopted functional tests rhat consider a variety of factors relating to the post-birth relationship between the putative parent and the child in the contexts of custody and visitation. For example, in Wisconsin a nonbiological, nonadoptive individual may seek custody of a child where (1) the biological or adoptive parent consented to and fostered the parent-like relationship; (2) the individual and child reside in the same household; (3) the nonbiological, nonadoptive party assumed obligations of parenthood without expectation of financial compensation; and (4) the relationship between the nonbiological, nonadoptive party existed for a sufficient time to develop a relationship parental in nature.

Understandably, the court did not rule on the issue of "de facto parentage" in the absence of a pre-conception agreement because a conception agreement was present in both Brooke S.B. and Estrellita A. However, by refusing to adopt a functional approach to parentage, which better suits the growing number of nontraditional families across the state, it is hard to imagine how the courts can achieve their overarching goal -- to determine a custodial arrangement that suits the best interests of a child.

ROBERT PRESTON is a shareholder and cochair of Greenspoon Marder's Matrimonial and Family Law practice group in New York. For over 25 years, Preston has handled highly complex domestic relations cases and appeals. He has conducted a substantial number of custody and financial trials relating to all phases of family law in the Supreme and Family Courts in New York City and its surrounding counties.