New York Same-Sex Couple Faces Child Custody Complexities


Recently, the New York Court of Appeals heard arguments in a custody hearing brought by a New York resident who is seeking visitation rights for a child she helped raise with her same-sex partner. The case challenges the scope of New York legislation that limits parental rights to a biological or adoptive tie to the child. According to the University of California, 15 percent of unmarried, same-sex couples are raising children in the United States.

While some states have made strides to broaden the scope of parental rights, others including New York, Utah and Florida have relied solely on marriage at the time of the child’s birth or adoption to solidify rights for non-biological parents. Gay rights activist groups are advocating for the latter, stating that such laws do not take the same-sex couples who had children while they were unmarried into consideration. Such a circumstance would allow one partner to sustain full parental rights while the other has no legal connection to the child if they were to split up.

In the case of Brooke S.B. v. Elizabeth C.C., Brooke Barone sought parental rights, including visitation and financial responsibility, for a child she and her former partner planned for, conceived and raised together. Ms. Barone planned to marry her partner, but the pair split up before the marriage equality laws went into effect. Although not married, the couple planned for and conceived a child with the help of a donor. Ms. Barone was present at the time the child was born and her name, as well as her partner’s, was listed on the birth certificate. Even after the relationship ended, Ms. Barone continued to act as a maternal figure in her son’s life, devoting her time and finances to raising the child until three years later, when her former partner cut off contact between her and the child. Ms. Barone filed for custody and visitation, but her petition was denied. The appellate court upheld the lower court’s decision. New York’s highest court accepted to review Ms. Barone’s case and heard oral arguments from both parties last June.

On August 30, New York’s highest court reversed and held that a second parent, not related to them by blood, adoption or marriage, can be recognized as a legal parent, even if they didn’t fit the standard categories. The court stated that the definition of parent established in Alison D. v. Virginia M. 25 years ago is not applicable to “increasingly varied familial relationships.” It further held that when an individual shows by clear and convincing evidence that the partners agreed to conceive and care for the child together, “the non-biological, non-adoptive partner has standing to seek visitation and custody.” As stated by The New York Times, the appeals court cited mounting social science research that suggests that a child may be distressed as a result of separation from “a primary attachment figure — such as a de facto parent.”

As the definition of an American family progressively alters over time, it may be particularly difficult to navigate the legalities of parental rights. The New York matrimonial and family law attorneys at Blodnick Fazio & Associates, PC have experience representing clients in complex cases, including divorce, child custody, support and visitation, maintenance (alimony), and equitable distribution. For more information, call the firm at (516) 280-7105.

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