Loeb & Loeb LLP represented the American Academy of Adoption Attorneys in an important case affecting the parental rights of same-sex couples. On August 30, the New York State Court of Appeals held in Brooke S.B. v. Elizabeth A. C.C., and in the companion case Estrellita A. v. Jennifer L.D., that non-biological, non-adoptive parents have standing to seek custody and visitation of children who were conceived and born into relationships in which both individuals had agreed to co-parent. The unanimous decision reversed a 1991 ruling in the matter of Alison D. v. Virginia M., which deniedparental rights to many people in nontraditional families who are raising children.
The court recognized that Alison D.’s bright-line rule rejecting standing for non-biological, non-adoptive parents inflicted a disproportionate hardship on same-sex couples, many of whom are raising children related to only one partner by birth or adoption and who may otherwise have been unable to obtain standing through marriage before the recent legalization of gay marriage in New York.
In the case of Brooke B., a non-biological lesbian mother is seeking joint custody and regular visitation rights over a child she and her former partner planned for and raised together. The couple was engaged to marry but separated before New York’s marriage equality law passed in 2011. Under Alison D., the only avenue for Brooke B. to establish legal parentage was to undergo a second parent adoption.
In overturning Alison D., the Court held that the fact that the unmarried parties in Brooke B. had reached a preconception agreement to "conceive and raise a child" together was sufficient to establish standing for the non-biological parent to later assert custody or visitation rights. The case has been remanded to Family Court for further proceedings.