Long Island Court Grants Legal Custody of Child to Three People

Laws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

The New York Court of Appeals ruled in Matter of BSB v EACC last year that the partner of a biological parent, who lacked an adoptive or biological relationship with the child, could still have standing under DRL § 70. The ruling expressly overturned prior law limiting standing under § 70 to biological parents, based on “more recently delineated legal principles.”

The parties in DM v. MM are a formerly married opposite-sex couple who were involved in a polyamorous relationship with a woman named AG. In 2007, AG gave birth to a child, of whom MM was the biological father. All three adults lived together and helped raise the child for over a year, until DM and AG moved out with the child and continued living together. MM and AG agreed to joint custody of the child, and MM and DM were divorced. In the present case, DM sought legal custody of the child as well.

Under New York law prior to 2016, DM might not have standing under § 70, since she is neither a biological nor an adoptive parent of the child. The court ruled, however, that legal custody would be in the child’s best interest, since DM has been a part of the child’s life since birth, and since the child recognizes both AG and DM as “mommy.”

If you need assistance with a New York child custody matter, contact me, Darren M. Shapiro, at your earliest convenience online or at 516-333-6555 to schedule your free and confidential half-hour consultation.

More Blog Posts:

What is an In Camera Child Custody Hearing? Long Island Family Law and Mediation Blog, March 25, 2017

When Should Courts Dismiss Child Custody Modification Requests without a Hearing? Long Island Family Law and Mediation Blog, January 28, 2017

Child Custody Modification Change of Circumstances from Entered Order or Settlement Date? Long Island Family Law and Mediation Blog, December 4, 2016


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