Several recent cases in New York have adjudicated the parental rights, if any, of a same-sex partner who formally neither plans the conception of nor adopts a child brought into the relationship by the other partner. In K v. C, 55 Misc.3d 723 (Sup. Ct. NY Cty 2016), currently on appeal, Judge Frank Nervo of the New York Supreme Court denied a petition for a custody hearing, holding that the word “parent” in Domestic Relations Law §70 does not include a same-sex partner if there has been “abatement” of a mutual plan of adoption. Interpreting the landmark Court of Appeals decision handed down last year in Brooke SB v. Elizabeth ACC, 28 NY.3d 1, 2016, Judge Nervo found that the petitioner, who was challenging for visitation and custodial rights, had not shown by clear and convincing evidence that the agreement to adopt forged by she and her then-partner, the respondent, had lasted through the adoption of the child. In so doing, Judge Nervo acknowledged that he was creating a new test—emphasizing “abatement”—that was not necessarily inherent in Judge Sheila Abdus-Salaam’s Brooke SB opinion.
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