Welcome back to another addition in our series of Parenting Time bullet point guides. These guides aim to give you a quick and easy insight into some of the most important parts of parenting time, visitation, and accompanying concepts in family law.
For today’s segment, we’ll be looking at the issues that may arise when someone not classed a “traditional” parent might seek visitation time opportunities. Specifically, we’ll be exploring concepts like same-sex couples, biological strangers, and the rights of stepparents.
As always, there are plenty of additional blogs and articles on my website if you find yourself in need of more guidance.
Same Sex Couples and Biological Strangers
In New York, family law dictates , in general, that a non-biological parent, that has not adopted the child, won’t have the right to apply for custody and parenting time. However, statutes do allow grandparents to petition for visitation and custody according to certain circumstances.
- In one case of Debra H. v Janice R, the Court of Appeals confirmed that “biological strangers” who had not adopted a child would not be able to proceed in court for the cases of custody and visitation. However, there are instances of cases ending up with different results. One same-sex partner in a case was able to proceed with her custody case, while in another case, a domestic partner was found to have no standing.
- In the case that a same sex partner to a biological parent unsuccessfully attempted to proceed in court with a case of visitation and custody, the court may rule that the partner did not have standing because they had never adopted the child. However, some courts have allowed partners to proceed with custody and visitation petitions based on the doctrine of judicial estoppel.
- In a case looking at judicial estoppel, the court would prevent someone from taking a position in a case when it is contradictory to the position taken in a previous case. For instance, if a parent argued in court that their partner should be seen as a parent for support purposes, and won her case, she would not be able to asset a different position for parenting time.
- Since new laws about same sex marriage came into effect, the laws relating to children remains a complex area. There’s a common presumption in New York that the husband of a child born to a parent of another married couple should still be seen as the parent of that child. This means that adoption by same sex partners is still the best way for parents to ensure their parental rights in the eyes of the law.
Stepparents in Visitation Cases
Stepparents are a common part of many family units. Just like their partners, stepparents may end up seeking information about their rights and responsibilities regarding stepchildren. Over time, stepparents who spend time with their stepchildren develop a stronger attachment to the children of their partners, and often take financial and moral responsibility for them.
- Stepparents don’t automatically receive the right in family law to ask a court for custody or visitation rights if fathers and mothers of a child have already been legally established. Parental authority is not automatically offered to stepparents. Instead, these stepparents may need to adopt the child, or become a legally appointed guardian for them.
- In some cases, stepparents may be asked to pay child support while married to the parent of another child if the children could be in danger of becoming public charges. This helps to prompt some parties into finalizing a divorce as quickly as possible. Most stepparents will not need to pay child support unless they are identified as a parent by equitable estoppel.
- Child support and child custody are topics that need to be addressed with an estoppel parent, just like a biological parent. Equitable estoppel is applied when a stepparent holds a child to be their own regardless of any biological relationship. The court may identify equitable estoppel in the best interests of the children.
- Stepparents keen to take more of a role in a child’s life legally can also apply for guardianship, which may allow for more rights when it comes to seeking custody and visitation options with that child. In some instances, it’s possible for testamentary guardianship to be offered to a stepparent through a will. Of course, a court of appropriate retains the discretion about whether this appointment is in the best interests of the child
- In many cases, stepparents have now become important emotional and financial resources for children. In some cases, the court even chooses to place the children in a case with stepparents following a case of neglect or abuse. However, this won’t always lead to permanent placement options, and the custody arrangement may be changed.
- Stepparent adoption is one of the best ways for the spouse to gain more comprehensive parental rights according to the state of New York when it comes to stepchildren. This adoption could allow for stepparents to apply for more parental rights such as visitation and child custody in the future.
If you have any concerns about the issues addressed in this guide, or you would like to learn more about things like stepparent visitation, same-sex cases, and estoppel, you can find additional guides and articles on this website. If you have a case of your own you need to address, you can contact me at your earliest convenience to arrange an initial appointment. Consultations are available for free for the first thirty minutes.