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Litigation. Collaborative Law. Mediation.

New York’s Highest Court Expands the Definition of “Parent”


In a true landmark ruling, the New York Court of Appeals, New York State’s highest court, has embraced a broader definition of a “parent” which would include the same-sex spouses of biological parents who did not adopt their partner’s child. In doing so, the Court overturned its prior precedent defining parenthood for purposes of custody as being determined only by biology or adoption.

First, some context. In 1991, the Court of Appeals decided the case Matter of Alison D. v. Virginia M. Alison and Virginia were a gay couple who first began seeing each other in 1977, moving in together and settling in Putnam County shortly thereafter. (For those interested in how the lives of quote-unquote regular people become precedential case law, I strongly recommend this Columbia Law Review article detailing the deep factual background and historical context of this case.) After much discussion and even more research – gay couples with children being relatively rare at the time – the two decided that Virginia would be artificially inseminated so that the couple could raise a child together. Thus, Virginia would be the biological mother, but both women would share equally in the responsibilities of parenthood.

Virginia gave birth to a son in 1981, and the parties raised him as your typical co-parents and spouses. In 1983, Alison gave birth to a daughter, and all indications are that Alison and Virginia intended to co-raise this child as well. However, a few months after Alison gave birth, the couple split up. Alison and Virginia managed to craft a de facto custody arrangement that held for a while, but as often happens, acrimony developed, and Virginia cut Alison off from seeing their son.

When Alison petitioned for visitation rights, she was first denied on the local level by the Supreme Court. She wound up fighting all the way to Court of Appeals, which in a 6-1 decision held that “[t]raditionally, in this State it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the nonparent has exercised some control over the child with the parents’ consent,” and as such, Alison “has no right to petition the court to displace the choice made by this fit parent [meaning Virginia] in deciding what is in the child’s best interests.”

Society has come a long way since 1991 in terms of recognizing different family relationships, and it’s not hyperbole to call this a bigoted decision by today’s standards.  This week, the Court of Appeals very specifically overturned that decision. Ruling in the combined appeals of Matter of Brooke S.B. v. Elizabeth A. CC. and Matter of Estrellita A. v. Jennifer D., the Court stated that “Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York state, and the United States Supreme Court’s holding in Obergefell v. Hodges.”

Specifically, the Court held that when a “preconception agreement” exists – meaning, a mutual decision to conceive and raise a child together – the parties to such an agreement may now be considered parents for the purposes of petitioning for visitation and custody. (Crazily, even under Alison D., these parents were sometimes ordered to pay child support even if they had no other parental rights.) The Court left open the question of what happens when no preconception agreement was in place prior to the child’s birth, but stressed that in all cases, the child’s best interests must be put first.

It’s worth noting – and the Brooke/Estrellita court certainly did so – that the legendary New York judge Judith Kaye filed a rigorous and forward-thinking dissent in Alison D. Noting that “the impact of today’s decision falls hardest on the children of those [same-sex and untraditional] relationships, limiting their opportunity to maintain bonds that may be crucial to their development,” and that by ruling at it did, the Court failed in its statutory duty to put the best interests of the subject child first, Judge Kaye, some 25 years ago, foresaw the revolutions in family law that would lead to this week’s ruling.