New York Judge Grants Legal Custody of Child to Three People

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The U.S. legal system has made numerous recent advances regarding the legal recognition of “non-traditional” family relationships. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges struck down laws prohibiting same-sex marriage across the country. This has led to changes in the law regarding the custody rights of people who have helped raise a child but are not a biological parent of the child. The New York Court of Appeals issued an important ruling in 2016 that effectively expanded the definition of “parent” to include same-sex partners of a biological parent. In early March 2017, a New York court granted custody of a child to three people who had raised the child together while involved in a committed polyamorous relationship—sometimes referred to as a “throuple.” The judge cited the child’s own statements in the ruling, noting that the child knows “two women as his mother” and that all three had raised him “in a loving environment.”

Prior to 2016, New York law was based on a 1991 Court of Appeals decision, Alison D. v. Virginia M., which held that someone who is not a child’s biological parent lacks standing to sue for custody. The case involved a lesbian couple who had a child through artificial insemination. The respondent gave birth to the child, and she and the petitioner “jointly cared for and made decisions regarding the child” for several years. After the relationship ended, the respondent gradually restricted the petitioner’s access to the child until she was cut off entirely. The petitioner sued for custody rights, but the court held that she lacked standing as a “parent” under § 70 of the Domestic Relations Law. A dissenting justice criticized the court’s reliance on “biology as the key to visitation rights.”

The dissent in Alison D. noted that the holding would “affect a wide spectrum of relationships” beyond the millions of children of same-sex parents, such as step-parent relationships. Obergefell dealt with some of the issues brought up in Alison D. by effectively legalizing same-sex marriage nationwide. The Supreme Court held that the Fourteenth Amendment’s Due Process and Equal Protection Clauses allows same-sex couples to marry. In August 2016, the New York Court of Appeals reversed Alison D. in two consolidated cases, Matter of Brooke S.B. and Matter of Estrellita A. The court noted that Obergefell specifically mentioned the benefits of marriage equality for “the children being raised by those couples.”

The “throuple” case, DM v. MM, involved a husband and wife who entered into a polyamorous relationship with another woman. They agreed that, since the wife was infertile, the other two would conceive, and they would all raise the child together. This arrangement continued until the child was almost two, when the two women decided to become a couple. The husband sued for custody, and the wife sued for divorce and, despite still living with the biological mother, custody. Since the now-ex-wife was not the child’s biological parent, she would have been excluded from custody under Alison M. The court ruled that she was entitled to legal custody after Brooke S.B., since she had played an active role in raising the child.

A skilled and experienced child custody attorney with knowledge of the New York City court system can help you understand your rights and obligations in disputes involving child custody, child support, and other family law matters. Ingrid Gherman has advocated for parents and spouses in New York City, both in and out of court, for more than 30 years. To schedule a confidential consultation to see how we can help you, contact us today online or at (212) 941-0767.

More Blog Posts:

Court Decisions Differ on Whether Men Who Make Donations to Help Others Conceive Are “Fathers” in a Legal Sense, New York Divorce Attorney Blog, March 24, 2017

Emergency Transfer of Child in New York Custody Dispute Results in Judicial Ethics Charges, New York Divorce Attorney Blog, January 17, 2017

Paternity Remains a Difficult Legal Issue in New York Family Law Cases, New York Divorce Attorney Blog, October 27, 2015


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