Susan Sommer of Lambda Legal, left, with her client Brooke B. at the New York State Court of Appeals on June 2
Susan Sommer of Lambda Legal, left, with her client Brooke B. at the New York State Court of Appeals on June 2 (Leslie Von Pless/Lambda Legal)

ALBANY – The definition of “parenthood” has been expanded in New York.

The state’s highest court ruled Tuesday that the nonmarried, ex-partner of a biological parent may seek custody or visitation rights of children they once agreed to conceive and raise as co-partners with their exes.

The Court of Appeals, in a 6-0 vote, said that given the legalization of same-sex marriages and other societal changes that have upset the notion of “parents” as being a married man and woman, it was time for it to abandon the precedent of its 1991 ruling in Matter of Alison D. v. Virginia M., 77 NY2d 651.

Basing visitation and custody rights chiefly on the biological relationship between adult and child has led to a “needlessly narrow” interpretation of what a “parent” is, Judge Sheila Abdus-Salaam wrote for the court.

Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York state, and the United States Supreme Court’s holding in Obergefell v. Hodges (576 US __, 135 S Ct 2584 [2015]),” she wrote.

The court said it could no longer allow situations to continue as have arisen under Alison D., where a nonbiological, nonadoptive “parent” can be blocked from seeking the rights of parenthood through visitation, yet be required to pay child support for that same minor.

The court said the fact that nonmarried parties had reached a preconception agreement to “conceive and raise a child” together is sufficient to establish standing for one of the parties to later assert custody or visitation rights.

The judges said they were going to leave for another day, based on different cases, what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couples.

In all cases, the court stressed, “the ultimate determination of whether those rights should be granted rests in the sound discretion of the court, which will determine the best interests of the child.”

The ruling in Matter of Brooke S.B. v. Elizabeth A. C.C., 91, and Matter of Estrellita A. v. Jennifer D., 92, reversed denials by family courts in Chautauqua and Suffolk counties of visitation sought by the former same-sex partners of children’s biological mothers. The petitioners in neither case had married their partners nor legally adopted the children.

Chief Judge Janet DiFiore and Judges Jenny Rivera, Leslie Stein and Michael Garcia joined Abdus-Salaam in the ruling.

Judge Eugene Pigott Jr. wrote in a concurring opinion that he agreed with the outcomes in both the cases before the court Tuesday, but said he would not overrule Alison D.

Pigott said that the definition of “parent” contained in Domestic Relations Law §70 mandates that it be derived from marriage, biology or adoption and he said the state Legislature has done nothing to alter that definition.

“As we have said before, ‘any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent,’” he wrote, quoting Debra H. v. Janice R., 14 NY3d 576 (2010).

Judge Eugene Fahey did not take part in the ruling.

‘Landmark’ Ruling

The Brooke S.B. case involved visitation she sought of a child her partner, Elizabeth A., gave birth to in 2009 while the two women were together. The relationship ended in 2010 and Brooke S.B.’s regular visitation was cut off by the birth mother in 2013.

Susan Sommer of Lambda Legal, who represented Brooke S.B., said in a statement that the “landmark” ruling will allow New York to free itself from legal definitions to which it has adhered despite significant change in society and other domestic laws in the past 25 years.

“Prior to today’s decision, New York law on this issue was tragically stuck in 1991, when the Court of Appeals ruled in the Alison D. case that non-biological, non-married, non-adoptive parents are legal strangers to the children they raised with a same-sex partner,” Sommer said.

Sommer’s co-counsels were Blank Rome partners Margaret Canby and Caroline Krauss-Browne and the LGBT Bar Association of Greater New York.

Eric Wrubel of Warshaw Burstein in Manhattan represented the attorney for the child in Brooke S.B., R. Thomas Rankin of Goodell & Rankin in Jamestown.

Wrubel applauded the court for adopting a revised reading of Domestic Relations Law §70 that adheres to the time-tested “best-interests-of-the-child” standard used in custody and visitation cases involving traditional couples, as Wrubel urged in oral arguments (NYLJ, June 2).

He said in an interview that participation in birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple will be used by courts to decide of an ex-partner’s commitment to being a parent.

“They [Court of Appeals' judges] want to look at the facts of how the people involved conduct themselves, and that is enough for them,” Wrubel said. “That should be enough for them.”

Sherry Bjork of Frewsburg represented the biological mother in Brooke S.B.

Christopher Chimeri, a partner at Quatela Hargraves & Chimeri in Hauppauge, represented Jennifer D. Associate Andrew Estes and partner Jeffrey Trachtman of Kramer Levin Naftalis & Frankel in Manhattan represented Estrellita along with Susan Mintz of Gervase & Mintz in Garden City. John Belmonte of Central Islip was the attorney for the child in the Estrellita case.

In the Estrellita A. case, Estrellita is seeking visitation of a child her former partner Jennifer D. gave birth to on Long Island in 2008. The couple split in 2012.

References to 1991 Dissent

The Abdus-Salaam ruling was replete with references to the dissent in Alison D. by former chief judge Judith Kaye. Kaye insisted that the court’s obligation to act within the best interests of the child gave it grounds to recognize the right to visitation of a person who “stands in loco parentis” even under Domestic Relations Law §70.

Kaye predicted that the majority’s ruling in Alison D. would fall hardest on the millions of children living in nontraditional households—including families headed by same-sex couples.

In addition to the legalization of same-sex marriages, Abdus-Salaam noted that the right of a biological parent’s unmarried partner to adopt the partner’s child has also been recognized in New York since the court considered Alison D. The recognition of legal rights in both areas call for a revision of the standard of parent in the 1991 determination, she said.

The Court of Appeals nearly abandoned Alison D. in 2010 in the Debra H. v. Janice R. ruling, but decided by a 4-3 margin to retain the reading of “parent” as only flowing through marriage, biology or adoption (NYLJ, May 5, 2010).

Pigott, who was in the majority in Debra H., is the only judge ruling in that case who is still on the court.

Among the groups filing amicus curiae briefs in the case supporting the visitation rights of Brooke S.B. and Estrellita were the New York City Bar Association, the New York State Bar Association, the National Center for Lesbian Rights, the National Association of Social Workers and Lawyers for Children.