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Non-Biological and Non-Adoptive Parent May Have Standing to Seek Custody

The New York Court of Appeals recently determined that a non-biological and non-adoptive parent may have standing to seek custody and visitation of a child.  The decision came at a time in which the social setting of the United States was calling for an acknowledgement of the parental rights of non-biological and non-adoptive parents. The Court of Appeals concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation, if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.

After the recognition of same-sex marriage in New York State, and the 2014 United State Supreme Court decision in Obergefell v. Hodges the New York Court of appeals recognized that the term “parent” as defined in New York State was outdated. Previously the court had relied on the case of Allison D. v. Virginia M. when determining that the term “parent” only applied to a person with a biological or adoptive relation to a child. The twenty-five-year-old decision was considered by the court, and it was determined that the definition of the term parent was unsustainable in today’s legal landscape.

The decision was reached on two separate cases. In the first case, the same sex couple jointly decided to have a child through artificial insemination of one of the parties. The parents raised the child together for two years before their relationship ended.

Similarly, in the second case, a same-sex couple came to an agreement to have a child through artificial insemination, after which the relationship ended. However, in this particular case, the biological parent had previously sought child support from the non-biological parent. The lower-level court granted the biological parent’s support petition, and used that in their determination that if the biological parent claimed the non-biological parent would have to pay child support, then they cannot later deny that they are a parent in a custody proceeding.  In that decision, the court noted that without the support petition, the non-biological parent would not have the standing to seek custody or visitation.

The Court in looking at the two cases stated, “by fixing biology as the key to visitation rights, the rule of Allison D. has inflicted disproportionate hardship on the growing number of nontraditional families across the state.” Demographic changes have transformed the elusive concept of the “average American family,” and therefore the court gathered that the fundamental concept of “the best interest of the child“ is being affected by such changes. Consequently, the court concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.

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