New York Court Expands The Definition Of Parent In Custody Cases

In 1991, New York’s Highest Court (the Court of Appeals) held that the only person who could petition a court for custody or visitation of a child was someone who either: (1) was the biological parent or (2) had an adoptive relationship to the child. This ruling precluded numerous de-facto parents and many same-sex parents from seeking custody or visitation of a child.

The Court has now overruled that decision and now, if a partner can show 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 can petition the court to seek visitation and/or custody under the law.

The Court’s ruling expands the definition of parent and now allows same-sex couples and other persons to seek visitation and/or custody, even if that person is not the biological parent or has not adopted the child.  However, the Court’s ruling is limited to situations where a petitioner can prove, by clear and convincing evidence, that he or she agreed with the biological parent of the child to (1) prior to conception to conceive the child and (2) raise the child as co-parents.

Furthermore, the Court’s ruling only means that the petitioner now has the right to bring the case to court (called standing), but, it does not mean that the petitioner will actually succeed in gaining visitation and/or custody rights.

The Court’s ruling does not necessarily effect whether a non-biological parent who agreed to raise a child AFTER conception has standing to bring forth a case for visitation and/or custody. Therefore, it will be left for another case to determine if the Court would allow a parent in that situation to petition for custody and/or visitation.

It is also important to note that the Court used the “clear and convincing” evidence standard to prove that an agreement existed.  This means that you must prove that it is substantially more likely that the agreement actually existed.  This is a higher level of proof than “preponderance of the evidence” were you only need to show that it is “more likely to be true” (greater than 50%).

Although, the Court’s ruling is somewhat limited, it is clear that the Court has opened the door and thus those persons who are not the biological parent or the adoptive parent now have some rights when it comes to child custody and/or visitation.

If you are not sure of what your rights are as a non-biological parent, the Badanes Law Office can help you. David Badanes and the Badanes Law Office have helped numerous clients in establishing their custody and visitation rights.

David Badanes and the Badanes Law Office represent clients in Suffolk County, Nassau County and in New York City.  Please contact the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport, Garden City, Brooklyn and Manhattan.

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