Court: Gays can seek parental rights for nonbiological kids

Today’s ruling notes that “a growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure – such as a de facto parent – regardless of that figure’s biological or adoptive ties to the children”.

New York’s highest court has expanded the definition of parenthood by ruling Tuesday that former same-sex couples have the right to seek visitation and custody of children even when they aren’t the biological or adoptive parent. The nonbiological mother wanted joint custody and visitation rights but was turned away by the courts.

Times have changed, the Court of Appeals said in a 6-0 decision, and thus so should the parameters of who qualifies for parental rights.

The Court of Appeals called its 25-year-old definition of heterosexual parenthood “unworkable when applied to increasingly varied familial relationships”, according to the unanimous decision written by Judge Sheila Abdus-Salaam.

We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. “Moreover, 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 NY state, and the United States Supreme Court’s holding in Obergefell v. Hodges, which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples”.

The decision does not guarantee that someone with no biological or adoptive link to a child can win visitation. Indeed, the court emphasized that “the ultimate determination of whether [custody and visitation] rights should be granted rests in the sound discretion of the [family] court [s], which will determine the best interests of the child”.

In two cases, women in homosexual relationships had agreed to conceive and raise a child through the use of artificial insemination. The women agreed to have a child via an anonymous sperm donor, and Elizabeth became pregnant in 2008.

The woman had a boy. “Both Brooke and Estrellita were at their partners” sides at each stage of pregnancy, and they personally cut the umbilical cords of their newborns. The ruling also applies to a second case, this one also involving lesbian parents in a custody dispute. Whether they are granted those rights will still be decided on a case-by-case basis. Each couple ultimately broke up, leading to the underlying conflict regarding parenting rights. The biological mother sought child support from her former partner. The biological mother, though, also sought to block court-ordered visitations on the grounds that her ex-partner was not considered a parent under the law.

“This is a major step forward for same-sex couples and especially for the children of those parents”, said attorney Eric Wrubel, who represented the child involved in one of the cases. As with all the parties to Tuesday’s ruling, the name of Trachtman’s client, Estrellita A., is abbreviated in the court record.