Brooke S.B. v. Elizabeth A.C.C.

• Citation: 39 N.Y.S.3d 89,2016 N.Y. Slip Op. 05903,61 N.E.3d 488,28 N.Y.3d 1
• Parties: In the Matter of BROOKE S.B., Respondent, v. ELIZABETH A.C.C., Respondent. R. Thomas Rankin, Esq., Attorney for the Child, Appellant. In the Matter of Estrellita A., Respondent, v. Jennifer L.D., Appellant.
• Decision Date: 30 August 2016
• Court: New York Court of Appeals

28 N.Y.3d 1
61 N.E.3d 488
39 N.Y.S.3d 89
2016 N.Y. Slip Op. 05903

In the Matter of BROOKE S.B., Respondent,
v.
ELIZABETH A.C.C., Respondent.

R. Thomas Rankin, Esq., Attorney for the Child, Appellant.

In the Matter of Estrellita A., Respondent,
v.
Jennifer L.D., Appellant.

Court of Appeals of New York.

Aug. 30, 2016.

39 N.Y.S.3d 90

Warshaw Burstein, LLP, New York City (Eric I. Wrubel, Linda Genero Sklaren and Alex R. Goldberg of counsel), and Goodell & Rankin, Jamestown (R. Thomas Rankin of counsel), for appellant in the first above-entitled proceeding.

Susan L. Sommer, Lambda Legal Defense and Education Fund, Inc., New York City, Blank Rome LLP, New York City (Margaret Canby and Caroline Krauss–Browne of counsel), and Brett M. Figlewski, The LGBT Bar Association of Greater New York, New York City, for Brooke S.B., respondent in the first above-entitled proceeding.

Sherry A. Bjork, Frewsburg, for Elizabeth A.C.C., respondent in the first above-entitled proceeding.

Quatela, Hargraves & Chimeri, PLLC, Hauppauge (Christopher J. Chimeri and Margaret Schaefler of counsel), for appellant in the second above-entitled proceeding.

Kramer Levin Naftalis & Frankel LLP, New York City (Andrew J. Estes and Jeffrey S. Trachtman of counsel), and Gervase & Mintz P.C., Garden City (Susan G. Mintz of counsel), for respondent in the second above-entitled proceeding.

Legal Aid Society of Suffolk County, Inc., Central Islip (John B. Belmonte and Robert C. Mitchell of counsel), Attorney for the Child, in the second above-entitled proceeding.

Suzanne B. Goldberg, Columbia Law School, New York City, for Richard J. Adago and others, amici curiae in the first above-entitled proceeding.

Cleary Gottlieb Steen & Hamilton LLP, New York City (Carmine D. Boccuzzi and Daniel D. Queen of counsel), for National Association of Social Workers and others, amici curiae in the first and second above-entitled proceedings.

Ropes & Gray LLP, New York City (Christopher Thomas Brown and Michael Y. Jo of counsel), Ropes & Gray LLP, Boston, Massachusetts (Kathryn E. Wilhelm and Joshua D. Rovenger of counsel), National Center for Lesbian Rights, San Francisco, California, American Civil Liberties Union, New York Civil Liberties Union, and New York City Gay and Lesbian Anti–Violence Project, New York City, for National Center for Lesbian Rights and others, amici curiae in the first above-entitled proceeding.

Ropes & Gray LLP, New York City (Christopher Thomas Brown and Michael Y. Jo of counsel), Ropes & Gray LLP, Boston, Massachusetts (Kathryn E. Wilhelm and Joshua D. Rovenger of counsel), National Center for Lesbian Rights, San Francisco, California, American Civil Liberties Union, New York City, and New York City Gay and Lesbian Anti–Violence Project, New York City, for National Center

39 N.Y.S.3d 91

for Lesbian Rights and others, amici curiae in the second above-entitled proceeding.

Latham & Watkins LLP, New York City (Virginia F. Tent, Grant F. Wahlquist and Katelyn M. Beaudette of counsel), for Association of the Bar of the City of New York and others, amici curiae in the first and second above-entitled proceedings.

David P. Miranda, New York State Bar Association, Albany, and Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City (Roberta A. Kaplan and Nila M. Merola of counsel), for New York State Bar Association, amicus curiae in the first above-entitled proceeding.

Loeb & Loeb, LLP, New York City (Eugene R. Licker of counsel), for American Academy of Adoption Attorneys and others, amici curiae in the first above-entitled proceeding.

Cahill Gordon & Reindel LLP, New York City (S. Penny Windle, Kerry Burns, Cindy Hong and Rebecca Salk of counsel), for Sanctuary for Families and others, amici curiae in the first above-entitled proceeding.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Jennifer L. Colyer, Justin J. Santolli and Naz E. Wehrli of counsel), for Lawyers for Children and another, amici curiae in the first and second above-entitled proceedings.

OPINION OF THE COURT

ABDUS–SALAAM, J.

61 N.E.3d 490

28 N.Y.3d 13

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v. Virginia M. , 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991) —namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their “established relationship with the child”

28 N.Y.3d 14

(77 N.Y.2d at 655, 569 N.Y.S.2d 586, 572 N.E.2d 27 ). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70(a). 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. Accordingly, today, we overrule Alison D. and hold 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 under Domestic Relations Law § 70.

I.

Matter of Brooke S.B. v. Elizabeth A.C.C.

Petitioner and respondent entered into a relationship in 2006 and, one year later, announced their engagement.¹ At the time, however, this was a purely symbolic gesture; same-sex couples could not legally marry in New York. Petitioner and respondent lacked the resources to travel to another jurisdiction to enter into a legal arrangement comparable to marriage, and it was then unclear whether New York would recognize an out-of-state same-sex union.

39 N.Y.S.3d 92

61 N.E.3d 491

Shortly thereafter, the couple jointly decided to have a child and agreed that respondent would carry the child. In 2008, respondent became pregnant through artificial insemination. During respondent's pregnancy, petitioner regularly attended prenatal doctor's appointments, remained involved in respondent's care, and joined respondent in the emergency room when she had a complication during the pregnancy. Respondent went into labor in June 2009. Petitioner stayed by her side and, when the subject child, a baby boy, was born, petitioner cut the umbilical cord. The couple gave the child petitioner's last name.

The parties continued to live together with the child and raised him jointly, sharing in all major parental responsibilities. Petitioner stayed at home with the child for a year while respondent returned to work. The child referred to petitioner as “Mama B.”

28 N.Y.3d 15

In 2010, the parties ended their relationship. Initially, respondent permitted petitioner regular visits with the child. In late 2012, however, petitioner's relationship with respondent deteriorated and, in or about July 2013, respondent effectively terminated petitioner's contact with the child.

Subsequently, petitioner commenced this proceeding seeking joint custody of the child and regular visitation. Family Court appointed an attorney for the child. That attorney determined that the child's best interests would be served by allowing regular visitation with petitioner.

Respondent moved to dismiss the petition, asserting that petitioner lacked standing to seek visitation or custody under Domestic Relations Law § 70 as interpreted in Alison D. because, in the absence of a biological or adoptive connection to the child, petitioner was not a “parent” within the meaning of the statute. Petitioner and the attorney for the child opposed the motion, contending that, in light of the legislature's enactment of the Marriage Equality Act (see L. 2011, ch. 95; Domestic Relations Law § 10–a ) and other changes in the law, Alison D. should no longer be followed. They further argued that petitioner's long-standing parental relationship with the child conferred standing to seek custody and visitation under principles of equitable estoppel.

After hearing argument on the motion, Family Court dismissed the petition. While commenting on the “heartbreaking” nature of the case, Family Court noted that petitioner did not adopt the child and therefore granted respondent's motion to dismiss on constraint of Alison D. The attorney for the child appealed.²

The Appellate Division unanimously affirmed (see 129 A.D.3d 1578, 1578–1579, 10 N.Y.S.3d 380 [4th Dept.2015] ). The Court concluded that, because petitioner had not married respondent, had not adopted the child, and had no biological relationship to the child, Alison D. prohibited Family Court from ruling that petitioner had standing to seek custody or visitation (...