The struggle against discrimination for same sex families and individuals has been a long road. However, changes have been occurring at a quicker pace since 2015 when the U.S. Supreme Court ruled that same-sex marriage is constitutionally legal across the entire United States in Obergefell v. Hodges.
For the last twenty-five years, under a case, entitled Allison D., a parent was only recognized by biology or adoption. Many children suffered and were cut off by a person they called “mommy” and who raised them from birth because that parent did not go through an expensive and time-consuming adoption or did not give physical birth to them. On August 30th, 2016 the highest court in New York, the Court of Appeals remedied the injury.
In The Matter of Brooke S.B. v. Elizabeth A. C.C, the Court of Appeals in an opinion written by Hon. Abdus-Salaam ruled, “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.”
Brooke and Elizabeth met and started a relationship in 2006. The following year they moved in together in upstate New York. Brooke gave Elizabeth an engagement ring. It was a symbolic gesture since same sex marriage was not legally recognized at the time. The parties started a family immediately. Elizabeth became pregnant via an anonymous donor in 2008. Brooke was present when their son was born and even cut the umbilical cord. Brooke’s last name was placed on his birth certificate, birth announcements and baptism certificate. Brooke engaged in caretaking and custodial responsibilities including feeding and bathing.
When Brooke and Elizabeth decided to terminate their relationship in 2010, Brooke continued to parent. She had regular and consistent parenting time with her son and he spent major holidays with Brooke and her family. Brooke continued to bring him to medical appointments, his school, and supported him financially. Three years later, Elizabeth ceased contact between Brooke and their son. The Court of Appeals ruled that Brooke had standing to seek custody and visitation. The Court recognized the varied modern families of today and that the old case law was unworkable. It cited numerous social science studies about the damage to children by being cut off from a primary caretaker, also known, as a parent to the child.
Once the criteria according to Brooke S.B., are met there is no limit. Thus, a parent who was previously denied standing for custody and visitation should be able to seek standing now after Brooke S.B. As Judge Piggot of the Court of Appeals pointed out, the previous improper deprivation of a right is a change in circumstances. The change in case law may also be seen as a change in circumstances. Retroactivity is generally applied by the Court of Appeals and lower courts when there is a new interpretation of previously existing law. New York courts broadly construe a new interpretation of an existing rule. The Courts have broad discretion to apply a decision retroactively. There is a trend in New York courts to apply decisions retroactively. In addition, res judicata usually does not apply in custody and visitation cases. Parenting decisions and plans are modifiable in accordance with the best interests of the child.
The Court of Appeals left open for the future, expansion of the definition of parent and recognition of non-biological and non-adoptive families where there is not a pre-conception agreement. Future cases or legislation may provide for a functional definition of a parent based on de facto and psychological factors for post-birth partners.