Law Professors Urge New York’s High Court to Protect Functional Parent-Child Relationships

New York, February 9, 2016–Professors from every one of New York’s 15 law schools are urging 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.

 

Columbia Law School’s Sexuality & Gender Law Clinic submitted an amicus brief on behalf of 45 professors in the case of Brooke S.B. vs. Elizabeth A. C.C.  At issue is whether a woman who had decided to have and raise a child together with her former partner can be denied the right to seek custody and visitation because she is not the child’s biological or adoptive parent.

 
This case involves 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. The current state of the law leaves Brooke S.B. and the child without recourse, unable to continue the close parent-child bond.

 

“New York’s law harms children by cutting them off from the adult who has parented them,” said Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of the Sexuality & Gender Law Clinic.  “The functional parent approach—endorsed overwhelmingly by family law scholars and an ever-growing number of courts—reflects the reality of family life today and promotes the best interests of New York’s children, as family law is supposed to do.”

 

The professors argue that the best way to protect parents and children is for the Court to overturn its earlier ruling and embrace the functional parent standard that many other courts have also implemented. “This is a pressing issue for the Court to address, given the rising number of children in American society whose parents are not legally or biologically related to them,” Goldberg added.

 

The brief asks the Court to revisit its much-criticized 1991 opinion in Alison D. v. Virginia M., which the Court had affirmed in the 2010 case of Debra H. v. Janice R.  In Alison D., the Court held that a woman had no legally recognizable relationship with her son, despite having planned the child’s conception and having raised the child since birth with her former partner.

 

“Fundamentally, a functional approach provides a practicable model for resolving disputes among the increasingly varied families of our society,” said Cynthia Luo, CLS ’17, a clinic student who worked on the brief. “It also corrects the harmful and widely condemned formalistic rule that is in place today that turns caring and devoted parents into legal strangers to their children, without any rights in their relationships with the children whom they’ve nurtured and loved.”

 

The Court of Appeals is expected to hear arguments in Brooke S.B. in late April or early May.

 

To contact Professor Suzanne B. Goldberg:  Call (212) 854-0411 or email [email protected].

 

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.