In Matter of Brooke S.B., v Elizabeth A.
C.C., two related cases, the Court of Appeals revisited Matter of Alison D. v Virginia M. (77 NY2d
651 [1991]) which held that in an unmarried couple, a partner without a
biological or adoptive relation to a child is not that child's
"parent" for purposes of standing to seek custody or visitation under
Domestic Relations Law § 70 (a), notwithstanding their "established relationship
with the child". The Court of
Appeals agreed that the Petitioners
in these cases, who similarly lacked any biological or adoptive connection to
the children, should have standing to seek custody and visitation pursuant to
Domestic Relations Law § 70 (a) in light of more recently delineated
legal principles, which required it to conclude that that definition of
"parent" established by it in Alison D. has become unworkable when
applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam
overruled Alison D. and held that where a partner shows by clear and convincing
evidence that the parties agreed to conceive a child and to raise the child
together, the non-biological, non-adoptive partner has standing to seek visitation
and custody under Domestic Relations Law § 70.
The
Court of Appeals pointed out that the petitioners had argued that its holding
that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent
to achieve standing to petition for custody and visitation requires it to
specify the limited circumstances in which such a person has standing as a
"parent" under Domestic Relations Law § 70. It observed that because of the fundamental
rights to which biological and adoptive parents are entitled, any encroachment
on the rights of such parents and, especially, any test to expand who is a
parent, must be appropriately narrow. It
rejected the premise that it must now declare that one test would be
appropriate for all situations, or that the competing tests proffered by
Petitioners and amici were the only options that should be considered. It noted that the Petitioners had alleged in
both cases before it that the parties entered into a pre-conception agreement to
conceive and raise a child as co-parents.
It held that these allegations, if proven by clear and convincing
evidence, were sufficient to establish standing. Because it decided these cases based on the
facts presented to it, it was premature for the Court to consider adopting a
test for situations in which a couple did not enter into a pre-conception
agreement. The Court specified that it did not decide whether, in a case where
a biological or adoptive parent consented to the creation of a parent-like relationship
between his or her partner and child after conception, the partner can
establish standing to seek visitation and custody. Inasmuch as the conception
test applied here, it did not opine on the proper test, if any, to be applied
in situations in which a couple has not entered into a pre-conception
agreement. It merely concluded that,
where a petitioner proves by clear and convincing evidence that he or she has
agreed with the biological parent of the child to conceive and raise the child
as co-parents, the petitioner has presented sufficient evidence to achieve
standing to seek custody and visitation of the child. Whether a partner without such an agreement
can establish standing and if so, what factors a petitioner must establish to
achieve standing based on equitable estoppel was a matter left for another day,
upon a different record. The Court stressed that its decision addressed only
the ability of a person to establish standing as a parent to petition for
custody or visitation; the ultimate determination of whether those rights shall
be granted rests in the sound discretion of the court, which will determine the
best interests of the child. The Court of
Appeals agreed that the Petitioners
in these cases, who similarly lacked any biological or adoptive connection to
the children, should have standing to seek custody and visitation pursuant to
Domestic Relations Law § 70 (a) in light of more recently delineated
legal principles, which required it to conclude that that definition of
"parent" established by it in Alison D. has become unworkable when
applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam
overruled Alison D. and held that where a partner shows by clear and convincing
evidence that the parties agreed to conceive a child and to raise the child
together, the non-biological, non-adoptive partner has standing to seek visitation
and custody under Domestic Relations Law § 70.
The
Court of Appeals pointed out that the petitioners had argued that its holding
that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent
to achieve standing to petition for custody and visitation requires it to
specify the limited circumstances in which such a person has standing as a
"parent" under Domestic Relations Law § 70. It observed that because of the fundamental
rights to which biological and adoptive parents are entitled, any encroachment
on the rights of such parents and, especially, any test to expand who is a
parent, must be appropriately narrow. It
rejected the premise that it must now declare that one test would be
appropriate for all situations, or that the competing tests proffered by
Petitioners and amici were the only options that should be considered. It noted that the Petitioners had alleged in
both cases before it that the parties entered into a pre-conception agreement to
conceive and raise a child as co-parents.
It held that these allegations, if proven by clear and convincing
evidence, were sufficient to establish standing. Because it decided these cases based on the
facts presented to it, it was premature for the Court to consider adopting a
test for situations in which a couple did not enter into a pre-conception
agreement. The Court specified that it did not decide whether, in a case where
a biological or adoptive parent consented to the creation of a parent-like relationship
between his or her partner and child after conception, the partner can
establish standing to seek visitation and custody. Inasmuch as the conception
test applied here, it did not opine on the proper test, if any, to be applied
in situations in which a couple has not entered into a pre-conception
agreement. It merely concluded that,
where a petitioner proves by clear and convincing evidence that he or she has
agreed with the biological parent of the child to conceive and raise the child
as co-parents, the petitioner has presented sufficient evidence to achieve
standing to seek custody and visitation of the child. Whether a partner without such an agreement
can establish standing and if so, what factors a petitioner must establish to
achieve standing based on equitable estoppel was a matter left for another day,
upon a different record. The Court stressed that its decision addressed only
the ability of a person to establish standing as a parent to petition for
custody or visitation; the ultimate determination of whether those rights shall
be granted rests in the sound discretion of the court, which will determine the
best interests of the child.
