New York Court of Appeals Overrules Alison D. v. Virginia M., Sets New Test for Same-Sex Co-Parent Standing on Custody/Visitation Claims

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child with whom they have a parental bond. The opinion for New York’s highest court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 WL 4507780 (August 30, 2016), provides 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 Section 70.”

The court was ruling on two cases that originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke B. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together. Elizabeth became pregnant through donor insemination and bore a son in June 2009. Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010, the year before the New York legislature enacted marriage equality for the state. Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated further, and Elizabeth terminated Brooke’s contact with the child in 2013. Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the Court of Appeals ruling in Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child. Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents. At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals. The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer L. D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination. They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity. Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012. Estrellita continued to have contact with the child with Jennifer’s permission. In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita. Estrellita responded by petitioning for legal visitation rights. The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support. However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim. The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case. The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest. The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith S. Kaye in the Alison D. case. Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interests of the child. By adopting this narrow decision, the court cut short legal proceedings before the child’s best interests could even be considered. Unfortunately, Judge Kaye passed away in January before learning that her dissent would be vindicated in this new ruling. However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent. Judge Kaye’s dissent in Alison D. was widely quoted and cited by courts in other states in subsequent rulings supporting co-parent standing to seek custody or visitation.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large number of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court six years ago, Debra H. v Janice R., in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Beauchamp Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserted that Alison D. was inconsistent with some subsequent rulings of the Court of Appeals in cases that did not involve same-sex couples. That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D. In that same case, Judge Robert Smith (also now retired) argued in concurrence that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents. The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed. Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights. The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interests of the child. Judge Abdus-Salaam emphasized the necessity of showing that there was an agreement, such that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of the recently-appointed Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion. All of these judges were appointed by Governor Andrew Cuomo, a Democrat. The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just six years ago in a ruling that praised Alison D. as creating a “bright-line rule” that avoided unnecessary litigation and uncertainty about parental standing. In Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity. (In her opinion for the court, Judge Abdus-Salaam questioned the efficacy of bright-line tests in matters as nuanced as custody and visitation.)

Judge Pigott argued that New York now has marriage equality and co-parent adoption, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases. In Estrellita v. Jennifer, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding. In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances,” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody. The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship. Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children, and would allow the extraordinary circumstances exception to be applied in cases occurring during this shifting period of legal doctrines governing marriage and parentage, rather than abandon the “bright-line” test of Alison D.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP (partners Margaret Canby and Caroline Krauss-Browne) and the LGBT Bar Association of Greater New York (Legal Director Brett Figlewski), Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child. In the Estrellita case, Andrew Estes and Jeffrey Trachtman represent Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child. The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.