While any person’s definition of “family” might be unique to them, it’s important to remember that it’s the court of New York’s delineation that matters most when decisions are to be made around child custody, parenting time, and visitation. As a child custody attorney, I’ve been involved with several complex cases around how a child should be supported and raised by people within their family. As I have reminded my clients in the past, up until now, only a “parent” – as dictated by the courts, will be able to petition for visitation or custody according to the outlines of Domestic Relations Law § 70. Perhaps one of the issues that makes this idea so complicated, however, is that Domestic Relations Law § 70 does not define what a “parent” is. This means that the courts need to determine that for themselves.
In issues presented to the courts of New York, except for in the case of “extraordinary circumstances” a parent should prevail over a non-parent in a custody battle. The law, up until now, is that for unmarried couples, partners that have no biological adoptive connection with the child had no standing to seek parenting time and custody. However, extraordinary circumstances like abandonment of the child, surrender of parenting rights, and more can alter the situation. The court of Appeals in New York highlighted the definition of parentage in New York in the case of Alison D. v Virginia M., 572 NE2d 27 (N.Y. 1991). However, this outline has become less applicable in a modern world, where the family relationship is now more varied and complex than ever. The case that presented the previous definition of “parent” was established in 1991, and since then, times have changed significantly.
The Changing Nature of the Parent in Child Custody Law
Now that the family status has transformed into something far more diverse, the courts of New York have had to re-think the way that they look at parentage. Ultimately, while it’s up to case law to indicate how legal arguments should be decided, when something complicated occurs, the highest court of New York can now overturn the prior case law and make new precedents in the legal environment. Of course the courts do not decide that a new precedent is required lightly. Child custody lawyers have a relatively new precedent to consider regarding parental rights for some individuals that are not related to and have not adopted a child.
In today’s unique world, where families and parents have become something entirely unique for many households, it’s important for the New York courts to be aware of the circumstances at hand, and how they may need to alter their determinations accordingly. The new law as found in Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d 1, Court of Appeals of New York (2016), is that if a party can provide clear and convincing evidence, that they have a pre-conception agreement with a parent to raise the child then they have standing to maintain a custody and parenting time case. The burden of proof in cases such as these is much more significant than a standard preponderance of evidence, which can make matters regarding child custody for non-biological parents more complicated. However, if it’s possible to show that an individual had an agreement with another parent to have a child and raise that youngster together, then a non-adoptive, or non-biological parent may have a standing with the courts of New York that allows them to seek visitation and custody rights.
Importantly, when someone chooses to enter an order of child support against a non-adoptive or non-biological parent, they will not have the right to claim that they are not a parent for that child in terms of custody and visitation or child support purposes. In other words, arguing for rights as a parent for visitation purposes will also make an individual applicable for support.
Working for the Best Interests of the Child
No matter how complicated matters of child custody and visitation might become in the courts of New York, it’s important to remember that judges will always be required to address circumstances considering the “best interests” of the child. In other words, the courts need to determine what is best for the child’s future physical and mental health. The changing nature of the family dynamic, and the circumstances outlined above leaves open a question of whether a non-adoptive or biological parent may continue to have standing with the help of a child-custody lawyer, even if a pre-conception agreement was not present.
Ultimately, there is now a precedent in place that indicates that if a partner can show by convincing and clear evidence that two parties agreed to have and raise a child together, then those parents should be able to seek visitation rights and custody responsibilities according to Domestic Relations Law. This is still true regardless of whether the parents have a biological or adoptive relationship with the child or not.
To learn more about the nature of pre-conception agreements, child custody, and visitation rights, you can read through my other blogs on this website, or reach out to me in person to talk about your specific case. I’m available for contact through my online form, or you can reach me over the phone at 516-333-6555. If you’re interested in meeting to discuss your case, I can offer a free half-hour initial consultation to potential clients.