At Last! New York Court Affirms Rights for Non-Biological Parents

In a big win for same-gender parents, New York’s appeals court has ruled that guardians without a biological connection to their child still have parenting rights.

New York was, of course, one of several states that legalized marriage equality prior to the Supreme Court ruling in Obergefell v. Hodges last year. However, parenting rights for same-gender couples don’t just hinge on marriage equality; there are several other legal issues at play.

While other states have affirmed that an individual in a same-gender couple without a biological connection or who hasn’t formally adopted a child still has a parenting claim, New York has actually lagged behind.

This has created several legal problems. One such case involved a former couple known in court papers as Brooke S.B. and Elizabeth A. C.C. — for ease of reference hereafter, Brooke and Elizabeth, respectively.

Brooke and Elizabeth got engaged in 2006 prior to New York recognizing same-gender marriages. As a result, they weren’t able to access the many state level rights that marriage would have provided moving forward, such as automatic parental rights should they choose to have children.

The couple did, in fact, make that decision anyway. Elizabeth became pregnant in 2008 via artificial insemination. Brooke did not have a biological relationship with the child, but she acted in every other sense as his parent, raising him jointly with Elizabeth.

Unfortunately, in 2010 Elizabeth and Brooke split up. According to court papers, at that point Elizabeth attempted to block Brooke from accessing their child on the basis that with no biological link — and having never gone through the adoption process because the parental relationship had just been assumed — Brooke had no legal claim to visitation rights.

Brooke sued, but a lower court sided with Elizabeth. At the time, legal precedent in the state meant that there was no legal recognition under the term “parent” for someone who had no biological or adoptive link to a child.

Appeals court recognizes changing definition of “parent” 

However, this past week the New York State Court of Appeals ruled that the previous denial hinged on a 25 year-old case that, based on modern readings and expansions of marriage and parenting rights, is simply no longer viable.

Specifically in this case, the court decided that Brooke had provided “clear and convincing evidence” that there was an agreement — albeit assumed — that she and Elizabeth would raise their child together and that Brooke fulfilled that role.

As a result, in this case and in similar cases where these same conditions are fulfilled, “the nonbiological, nonadoptive partner has standing to seek visitation and custody.”

The court further recognized that the Alison D. v. Virginia M. case on which much of New York’s parental adjudication has been made can’t be applied in the same way it once was. The case hinges on a model of heterosexual parenting that can’t account for the complexities of same-gender parenting — or, for that matter, instances in which parents choose to cohabit or where one partner cannot have children, for example.

State lawmakers made it very clear in legalizing same-gender marriage that they believed all parenting rights should be available to same-gender couples, just as they are for straight couples who enter into marriage. Had Elizabeth and Brooke been able to marry — and there’s enough evidence to suggest that was their intent — Brooke’s parental claim wouldn’t have been open to debate.

As a result, this case is edifying on several levels.

“This is a landmark change in New York for children born to same-sex and other couples who couldn’t or didn’t marry and who later split up, without any protection under the law for the critical ongoing relationships between the non-biological parents and their children,” Susan Sommer, National Director of Constitutional Litigation at Lambda Legal, stated

The Court of Appeals also handed down a judgement in a similar case known as Estrellita A. v. Jennifer L.D., in which a lesbian parent who was paying child support argued she should be able to have visitation rights. The court agreed in that case too.

Most other states have already provided for this kind of parenting claim, but this case does highlight how, though the marriage equality ruling of 2015 was a crucial step, the legacy of anti-LGBT discrimination continues to harm LGBT people in subtle and pervasive ways.

Thankfully, this case settles one of those major issues for New York couples and their children.

Photo credit: Thinkstock.


Lisa V.
Lisa Vabout a year ago

Good info. Thanks for sharing.

Jeanne Rogers
Jeanne Rabout a year ago

Thank you for sharing.

Janet B.
Janet Babout a year ago


Barbara A.
Barbara Aabout a year ago


Wendi M.
Wendi Mabout a year ago


Nathan D.
Nathan Dabout a year ago

Ridiculous that same-sex parents are reduced to court battles in order to see a child that they have loved and reared as their own, and yet a rapist can potentially sue for joint custody of a child he sired while committing a violent attack upon the mother.

Beth Wilkerson
Beth Wilkersonabout a year ago

thank you New York

Andrea B.
.about a year ago

Thanks for sharing this article.

Brett Cloud
Brett Cloudabout a year ago


Randy Q.
Past Member about a year ago