Rights of Some Functional Parents Now Protected in NYS Custody and Visitation Disputes
New York, August 30, 2016—In a major family law ruling, the New York Court of Appeals today recognized that adults who agree to conceive and raise a child together should both be considered parents in the eyes of the law. This decision reverses earlier rulings that, for decades, have blocked adults from seeking visitation or custody with the children they were parenting with a former partner on the ground that those adults were not legally or biologically related to their children.
In an amicus brief filed by Columbia Law School’s Sexuality & Gender Law Clinic, professors from every one of New York’s 15 law schools urged the state’s highest court to stop treating functional parents—those who have raised children with a former partner—as “legal strangers” to their children.
“This ruling is a profoundly important shift toward equality and recognition for parents who plan for and have raised children with their partners,” said Professor Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of the Sexuality & Gender Law Clinic. “The court has gone a long way toward bringing New York’s law into line with the reality of family life. The ruling also brings an end to painful decades of jurisprudence that cut ties between parents and their children.”
The case, Brooke S.B. vs. Elizabeth A. C.C, involved a couple who decided to have a child together and who shared in all aspects of raising their son after Elizabeth A. C.C., the biological mother, gave birth. The couple later separated, and initially both parents shared custody. However, the biological mother has since refused to allow her former partner, Brooke S.B., to see or contact their son. Now, with her parental status recognized, Brooke S.B. will be able to return to court to seek parenting time with her son.
The court also affirmed a lower court ruling in Estrellita A. v. Jennifer L.D., recognizing that it would be inconsistent and impermissible to require a co-parent to pay child support but bar that co-parent from seeking visitation with the child she had been raising with her former partner.
The professors argued in the Clinic’s amicus brief that the best way to protect parents and children is to embrace the functional parent standard that many other courts have also implemented. The court did not adopt the functional standard in full, instead focusing on the facts of the two cases before it, which both involved parents that had planned to conceive as well as raise the child with their former partners.
Still, the ruling powerfully recognizes that the earlier non-recognition of co-parents like Brooke S.B. had “inflicted disproportionate hardship on the growing number of nontraditional families across our state,” as the court’s opinion explained. The court pointedly overruled its much-criticized 1991 opinion in Alison D. v. Virginia M., in which the Court held that a woman was a “legal stranger” to her son, despite having planned the child’s conception and having raised the child since birth with her former partner.
“Finally, parents who plan for and raise children with their partners in New York are no longer legal strangers to their sons and daughters,” Goldberg added. “This is a result truly in the best interests of children throughout the state.”
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Sexuality and Gender Law Clinic students who worked on the brief include:
Alex Finkelstein ’17, Sydney Gaylin ’17, Angela Kintominas ’16, Cynthia Luo ’17, Sarah Mac Dougall ’16, Jonathan Newmark ’17; Anya Olsen ’17, and Hunter Vanaria ’16.
Columbia Law School’s Sexuality & Gender Law Clinic addresses cutting-edge issues in sexuality and gender law through litigation, legislation, public policy analysis and other forms of advocacy.