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to Section One | to Arts & Entertainment
posted Friday, September 2, 2016 - Volume 44 Issue 36
New York court makes landmark ruling on rights of non-biological and non-adoptive parents
Section One
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New York court makes landmark ruling on rights of non-biological and non-adoptive parents

by Mike Andrew - SGN Staff Writer

The New York Court of Appeals - that state's equivalent of a Supreme Court - issued a major decision on August 30 clarifying the rights of non-biological and non-adoptive parents.

In doing so, the court reversed its own 1991 precedent in a case known as Alison D. v. Virginia M. and ruled that non-biological and non-adoptive parents may be granted joint custody and visitation rights if a couple breaks up.

In the August 30 decision written by Judge Sheila Abdus-Salaam, the court held 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.'

The old rule established in the Alison D. case restricted the definition of 'parent' to someone with biological or adoptive connections.

In the new decision, the court noted that the 1991 ruling came 20 years before New York allowed same-sex marriages, and it said the old decision 'has become unworkable.'

'We agree that, in light of more recently delineated legal principles, the definition of 'parent' established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships,' Judge Abdus-Salaam wrote in the decision.

The judges added that their 1991 Court of Appeals ruling limiting the legal definition of parents to those with a biological or adoptive relationship 'has inflicted disproportionate hardship on the growing number of nontraditional families across our State.'

The decision does not guarantee that a non-biological or non-adoptive parent will win visitation rights, but it does open the door for courts to award those rights on a case-by-case basis based on what is determined to be in the best interest of the child.

'The court today opened the door wide,' said Susan Sommer, Lambda Legal's director of constitutional litigation, who successfully argued the case on behalf of a non-biological parent.

'No longer is there a rigid rule in New York blocking children and their non-biological parents form sustaining their relationships,' she said.

Eric Wrubel, who argued the appeal on behalf of one of the children, praised the decision as 'a major step forward for same-sex couples, and especially for the children of those parents.'

'Tying the definition of parenthood to biology or adoption was no longer viable,' he added.

Complicated cases
The New York Court of Appeals made its ruling in two complicated cases, both involving artificial insemination of one of the partners in a couple.

In one case, a Lesbian couple began dating in 2006 and became engaged a year later, even though they could not be legally married in New York at the time.

In 2008, the couple decided to have a baby, with one of the women becoming pregnant through artificial insemination. Eventually, the couple split up and the biological mother sought to cut off her ex-partner's contact with the child.

Lower courts ruled in favor of the biological mother, based on the Alison D. precedent, but they were overruled by the Court of Appeals on August 30.

In the second case, a Lesbian couple moved in together in 2003 and became registered domestic partners in 2007. They decided to have a baby, and a year later one of the women was impregnated through artificial insemination. The couple broke up in 2012.

The biological mother sought child support from her ex-partner, which the lower courts granted on the basis that the ex-partner was seen as a parent.

However, the biological mother also sought to block court-ordered visitations on the grounds that her ex-partner was not considered a parent under the Alison D. precedent.

Lower courts ruled in favor of the non-biological ex-partner, saying she cannot be considered a parent for the purpose of assessing child support but a non-parent for the purpose of visitation rights. In this case, the Court of Appeals upheld the lower courts.

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