It has long been recognized by both the U.S. Supreme Court1 and the New York State Court of Appeals,2 that a parent’s interest in the care, custody and control of their children is a “fundamental right.” Most recently, the New York State Court of Appeals addressed the issue of standing to assert parenting rights by a non-biological, non-adoptive person in Matter of Brooke S.B. v. Elizabeth A.C.C.3—overturning a prior long-standing Court of Appeals’ decision which had a restrictive effect over the rights of same-sex couples in particular.
The prior controlling case law, dating back 25 years,4 had held that a person not having a biological or adoptive relationship with a child is not a parent for purposes of standing to seek custody, or even visitation. The Court of Appeals in deciding Matter of Brooke has acknowledged the changes we have all witnessed in society and has accordingly expanded the definition of the term “parent.” The court has now given standing to the non-biological, non-adoptive petitioner where there is a pre-conception agreement in which the petitioner and the biological parent have agreed to conceive and raise the child as co-parents. This pre-conception agreement need not be in writing, but it must be proven by clear and convincing evidence. The court did not have before it those situations in which such an agreement does not exist but where the couple has lived together with the child and raised the child as co-parents. Undoubtedly this will be an issue that will be addressed in the near future.
