Definition of “Parent” Evolves to Include Same-Sex Couples, Thanks to New York’s Highest Court

lgbtq rings

Photo Credit: Gutzemberg /

Under New York law, both of a child’s parents have rights regarding custody and visitation, as well as obligations regarding support. As the legal landscape regarding marriage changes and evolves, the definition of “parent” has also evolved. More than 20 years ago, the New York Court of Appeals held in Alison D. v. Virginia M. that only biological or adoptive parents have standing to petition for visitation. In the summer of 2016, the court overturned this precedent in Matter of Brooke S.B., allowing the former same-sex partner of a child’s biological mother to petition for visitation. The petitioner had a longstanding relationship with the child that continued for years after her relationship with the biological mother ended, and the court recognized that she could be considered a “parent” under the law.

Section 70 of the New York Domestic Relations Law states that “either parent” of a child may petition a court to make orders regarding custody and visitation rights. The statute does not, however, provide a distinct definition of a “parent.” In 1991, the Court of Appeals ruled in Alison D. that a “biological stranger to a child” is not a “parent” within the meaning of § 70 and therefore lacks standing to seek visitation rights.

The petitioner in Alison D. was involved in a romantic relationship with the respondent. They decided to have a child together, and the respondent conceived via artificial insemination. She gave birth to a boy in July 1981. The child took the petitioner’s last name, despite the lack of any legal relationship between them. The petitioner and respondent ended their relationship in 1983, but they worked out an agreement for visitation and support payments by the petitioner. This lasted several years, but eventually the respondent cut off the petitioner’s access to the child. The petitioner sought a court order under § 70 for visitation. Even though the child knew both the respondent and the petitioner as “Mommy,” the court denied the petition for lack of standing.

The Brooke S.B. case presented similar facts, mostly only differing with regard to the time period in which they occurred. The respondent conceived via artificial insemination and gave birth to a child in 2009. The parties’ relationship ended in 2010, but the petitioner continued to have regular contact with the child for several years. In 2013, the respondent “effectively terminated petitioner’s contact with the child.” The petitioner filed suit under § 70, and the respondent moved to dismiss, citing Alison D.

The trial court dismissed the case, and the appellate court affirmed that ruling. By the time the case reached the Court of Appeals, however, the U.S. Supreme Court had decided Obergefell v. Hodges, which struck down state laws prohibiting same-sex marriages. The Court of Appeals ruled that, in light of decisions like Obergefell, “Alison D.‘s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable.” It held that non-biological, non-adoptive parents may have standing under § 70.

The court did not define a specific test for determining who may have standing, but it held that a petitioner must prove, by clear and convincing evidence, an agreement with the biological parent “to conceive and raise the child as co-parents.”

A legal dispute over issues like child custody requires the assistance of a knowledgeable and experienced New York City child custody attorney. Ingrid Gherman has advocated for parents for over 30 years and can help you understand your rights and obligations under state law. Contact us online or at (212) 941-0767 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

State Supreme Court Overturns Ban on Same-Sex Foster Parents, New York Divorce Attorney Blog, May 15, 2017

New York Judge Grants Legal Custody of Child to Three People, New York Divorce Attorney Blog, March 30, 2017

Changes in Washington Are Unlikely to Affect Same-Sex Marriage in New York City, New York Divorce Attorney Blog, February 4, 2017

Contact Information