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The definition of who can obtain status as a parent and have standing to seek custody and visitation of a child continues to evolve in the State of New York. In the 1991 Matter of Alison D., Appellant, v. Virginia M., Respondent, the Court of Appeals declined to construe the term parent to include non-biological, non-adoptive parents. Therefore, for years only a biological or adoptive parent had standing to seek custody and visitation. Although this precedent had been tested many times, it had not been overturned. It finally was redefined in 2016 by the Court of Appeals in the Matter of Brooke S.B. v Elizabeth A.C.C.. In “Brooke,” the Court recognized that where a former same-sex partner can demonstrate by clear and convincing evidence that the parties had jointly agreed to conceive a child which one of them would bear, and also agreed to raise the child together once born, the non-biological, non-adoptive parent has standing as a parent to seek custody and visitation with the child, even if the parties’ relationship has ended. The Court recognized that its previous narrow interpretation of parent under “Alison D.” had produced inequitable results, especially for children being raised by same sex couples. The “Brooke” Court recognized that parenthood was broader than biology or adoption and held that the criteria to determine parenthood must be appropriately narrowed to consider the fundamental rights to which biological and adoptive parents are undeniably entitled.

While “Brooke” dealt with the issue of children who were planned and conceived through means of artificial insemination, a recent case decided by the Appellate Division dealt with a child legally adopted by one partner, where the other partner claimed he or she is a parent with co-equal rights because of a pre-adoption agreement. New York State has had a long-standing, unbroken and fundamental policy to treat adoptive and biological children equally in family settings. In this recent case, the parties conceded they had an agreement to internationally adopt and raise a child together. They had agreed that one of the parties would complete an international adoption and bring the child to the United States, at which time the petitioner would second adopt that child. It is undisputed that the parties’ romantic relationship ended well before any particular child was identified by an international agency and offered to the party for adoption. The lower Court ruled that the parties’ mutual intention to raise and adopt a child together did not survive the end of their romantic relationship. The Appellate Division reasoned that the Lower Court had conducted an inquiry consistent with the goals of the “Brooke” case. The Court concluded that the trial Court correctly addressed the issue of allowing a non-biological, non-adoptive parent the means of achieving standing while also heeding the “Brooke” requirement that criteria to determine parenthood always must consider the rights of the biological and adoptive parents. The Appellate Division affirmed the lower court’s decision and rejected the argument that if the parties at any point in time agreed to jointly conceive or adopt and raise children that agreement is a predicate for standing to seek custody/visitation of any subsequently born and or adopted child of either party under any circumstances.

The parties in this case did, in fact, have a pre-adoption agreement. However, when the relationship and agreement terminated no child had yet been identified for adoption. The Appellate Division reasoned that from the time the plan was formulated and going forward until the plan ended, neither partner could be identified as a parent. The Court reasoned that the plan must be in effect when that the child is identified. It went further and added that if a plan had been in place when a particular child was identified, then the partners could become parents under Domestic Relations Section 70 at that time, with standing thereafter to seek custody and visitation in the event of a change in the household. The Appellate Division did remand the matter for continued hearings as to the issue of equitable estoppel (a legal principle that stops someone from taking a legal action that conflicts with his previous claims or behaviors), since the record was incomplete on that issue.