As the Law Journal recently reported (“Judges Wrestle With Definition of Parenthood at Argument,” June 6), New York’s Court of Appeals heard a case last week that provides the opportunity to take a crucial step forward in protecting the rights of LGBT parents. At the argument, several of the judges rightfully asked whether it is time for New York to stop privileging biological connection as the linchpin of parental rights. It is time. We can and should provide parity to LGBT parents and others who cannot conceive without assistance by recognizing that parent-child relationships now often begin with assisted conception. The legal path to this goal, however, is far from simple. It must be laid through a minefield of potential unintended consequences. In establishing parity, the court must resist calls to drastically change the law of parenthood in ways that would hurt single parents and their children.
The facts of the pending case are in dispute and not available to the public, but given the legal posture of the case, the court will assume as true the facts claimed by the Appellant, Brooke B. According to Brooke B., she and her former partner Elizabeth C.C. decided they would conceive a child through donor insemination. Brooke assisted with pre-natal care, was in the delivery room when Elizabeth gave birth, cut the umbilical cord, and helped name the baby. They announced the birth together and introduced themselves as his two mothers. They co-parented the boy for four years, sharing the full range of child-care responsibilities. But after the couple split, Elizabeth cut off contact between Brooke and the child. Brooke went to court to seek joint custody. Despite her claim that she had acted in every sense as a mother, the court would not even consider Brooke’s request for custody or visitation because she had no biological or adoptive ties to the child.
As the number of LGBT couples raising children has increased in recent years, so too, have cases in which they have custody disputes following break-ups. But, unlike parents who conceive without assistance, the courts often turn away these parents without ever hearing their cases because they are not considered parents under the law.
There seems to us no doubt that individuals in positions like the one Brooke B. describes are parents and should be recognized as legal parents. That’s the easy part. The hard part is creating a legal rule that explains exactly when and how someone becomes a parent with legal rights. Children today live with adults in countless arrangements, many of which change over time. Having more strong, loving relationships is wonderful for children; granting all those relationships the status of parenthood would be harmful.
It is critical that our law of parenthood be clear and predictable and that it ensures no single parent gives up parental rights to someone else without expressly deciding to do so.
We believe the best way to achieve parity without risking unintended consequences would be to recognize LGBT couples as legal co-parents through the same three routes non-LGBT couples have: conception, adoption and marriage. For adoption and marriage, it is straightforward to say that LGBT couples should have the ability to become legal parents through exactly the same process as other couples. Conception, of course, entails a different process for LGBT couples than for fertile heterosexual couples. Courts should realize that the critical step toward becoming a parent is not the method of conception, but that two individuals consciously take an action they understand may lead to the conception of a child. Any couple who decides together and intentionally acts together to conceive a child, whether or not the conception is assisted and whether the couple is LGBT or straight, should be legally recognized as parents.
Dangerously, however, some advocates are asking the court to do something other than establish parity. They are seeking to change the longstanding bright-lines around parental rights to require courts to determine separately in every case whether a person has functioned as a “de facto” parent.
It is tempting to many to say we should let the courts decide who gets custody of children on a case-by-case basis. It is tempting to say we should allow the courts to decide for every individual child whether it is in that child’s “best interests” to continue a relationship with an adult. But those of us who represent parents in Family Court—the vast majority of whom are low-income, single mothers, disproportionately minorities—are very clear that a “best interests” standard does not always actually serve children’s best interests. We and our clients have learned the hard way that although individuals do not always make perfect decisions, they are far better at making decisions for their children than courts are.
We must resist the temptation of a rule that sounds good—who could oppose children’s best interests?—and pause to consider how such a rule would play out. To say a judge should determine in every case whether someone played a sufficiently parental role that he or she should have a right to custody is to invite judges to subjectively assess the most intimate aspects of family life.
Over 1 million children in New York are currently being raised by single parents. Many of these parents welcome others, including romantic partners, friends, and extended family members, into their homes and encourage them to participate in their children’s lives in meaningful ways. A vague, subjective, “de facto” parent rule would mean a single parent would have no way of knowing when she was giving up her parental rights. Only in retrospect would one learn how many meals someone else had to cook for the children before counting as a “de facto” parent. This is the opposite of the clarity children and single parents need.
Lack of clarity in the law invites litigation, particularly at the often contentious moment when two adults are parting ways. The costs of such litigation would be immense. Single parents could be forced into years of litigation. Time and again, we have seen custody battles drag on, sapping families financially and imposing an enormous emotional toll on the adults and the children involved.
The danger is particularly great for single parents who are victims of domestic violence. Abusive partners often use perceived leverage over children to threaten victims and frequently exploit the court system as a means to harass. We should not open the door to batterers being able to continue harassing victims who leave abusive relationships by forcing them into extensive litigation over access to their children.
Nor would the increased litigation be limited to two adults seeking custody of a child. A “de facto” parent test could mean that in many contemporary family situations, including all those with step-parents, more than two people could have a claim to full parental rights. Such an invitation to litigate would be harmful to LGBT and straight parents alike.
No legal right is more important than the one that protects the parent-child relationship. The longstanding rule that parenthood is legally established through the unambiguous steps of conception, adoption or marriage should be extended to all couples, so that the individuals involved, rather than courts, decide when they become legal co-parents.