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The Matrimonial StrategistFamily LawFeaturesLitigationLJN Newsletters

Standing to Seek Visitation and Custody<br><b><i><font="-1">New York Expands Definition of 'Parent'</b></i></font>

By Thomas A. Elliot
March 01, 2017

In the recent case of Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 61 N.E.3d 488, 39 N.Y.S.2d 89 (2016), New York's highest court, the Court of Appeals, held that, where it is shown 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, as a parent, to maintain a proceeding pursuant to Domestic Relations Law (DRL) Section 70 seeking custody and visitation. In so holding the court, citing the overarching “best interests of the child” standard applicable in custody and visitation cases in New York State, expanded the definition of “parent” under DRL Section 70, and overruled its 25-year-old prior holding in Alison D. v. Virginia M., 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991). In Alison D., the court, citing the need to preserve the rights of biological parents to custody and control of a child, had held that a biological stranger to a child who is properly in the custody of his biological mother has no standing to seek visitation with the child pursuant to DRL Section 70.

Factual and Procedural Background

In Brook S.B. v. Elizabeth A.C.C., the parties were an unmarried same-sex female couple in a committed relationship. At one point, the parties agreed to have a child together. The parties agreed that the respondent would become pregnant through artificial insemination and carry the child. The respondent became pregnant in 2008. During the pregnancy, the petitioner regularly attended prenatal doctor appointments, remained involved in the respondent's care and joined the respondent in the emergency room when she had a complication during pregnancy. The petitioner was present when the child was born and the parties gave the child the petitioner's last name. Further, after the child was born, the parties continued to reside together and raised the child jointly, sharing all major parental responsibilities. The petitioner stayed home with the child for a year while the respondent returned to work.

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