In August, the New York Court of Appeals, New York’s high court, overruled a decades-old decision that had denied parental rights to a parent’s partner who had no biological, adoptive, or marital connection to the partner’s child. The old precedent, Matter of Alison D. v. Virginia M., was decided at a point when same-sex couples could not marry, and second-parent adoptions were not readily available either. This meant effectively that same-sex couples who had children through artificial insemination and then split up could leave one of the partners—a parent from the perspective of the child—with no standing to seek custody or visitation. The new decision, In the Matter of Brooke S.B. v. Elizabeth A. C.C., holds that if partners plan, prior to a child’s conception, to both be parents to that child, then the non-biological partner has standing to seek custody and visitation as a parent in the event that the couple splits up. The new decision represents a very positive development in terms of justice and the rights of de facto parents to the relationships they have often developed with their partners’ biological children. One potential concern, however, is whether the case runs into the parental rights established in Troxel v. Granville, the U.S. Supreme Court’s 2000 decision against the assertion by grandparents of custodial claims.
Consider a hypothetical scenario that could have happened under the old regime. Two women form a couple, intending to stay together for the rest of their lives. They plan to have two children, Aidan and Barbara, who would both be theirs. One of the women, Eve, according to plan, conceives the first child with donated sperm, and her partner Mary then adopts Aidan. Mary then conceives Barbara and gives birth to her. Eve and Mary both love the children as their own, and each nurses the other’s biological baby. Before there is time to complete Eve’s adoption of Barbara, however, Eve and Mary split up. Under the law, Mary can seek and obtain visitation with Aidan because she adopted him, but under Alison D., Eve has no right to seek any sort of relationship with Barbara because she is not biologically, adoptively, or maritally related to Barbara.
This is plainly an unjust state of affairs. Moreover, there is a certain bitter irony in the law. Because of its prior discriminatory nature, it enabled a lesbian biological parent to completely cut off her former partner’s access to a person they had both understood to be a joint child, thereby invalidating the alternative family that they had formed together. All things being equal, it would also be harmful to Barbara not to be able to spend time with her other mom and, needless to say, it would cause great sorrow to Eve as well.
Brooke S.B. recognized how wrong such a scenario was and said that at the very least, couples that plan, pre-conception, for the child to be both of theirs thereby vest a parental status in the non-biological and non-adoptive parent. Now that same-sex couples can marry, and second-parent adoptions are commonplace, there may ultimately be less need for Brooke S.B., but plenty of de facto parents have been stung by Alison D. in the interim, and they will surely rejoice at the opportunity to right some of the wrongs of the past. The case may also have implications for straight cohabitants who have parented together.
There is at least one potential problem, though, and it is Troxel v. Granville. Troxel held that parents have constitutionally protected rights that may not be subordinated to the interests of third parties, including grandparents, to relationships with the children in question. How might Troxel affect Brooke S.B.? Doesn’t Brooke itself protect the parental rights of a person who was previously left out in the cold? Arguably yes, but all depends on how the Supreme Court defines “parent.” If a “parent” is defined traditionally, then the scope of parenthood will mirror that of the sole parent recognized by Alison D.—the biological, adoptive, or marital parent. Under this definition, giving parental rights to someone like Eve is tantamount to extending parental rights to grandparents, and that is something that the Supreme Court has rejected as a violation of substantive due process.
The highest court of New York has therefore potentially put itself in the path of the Supreme Court’s parental rights jurisprudence, by watering down the rights of the traditional parent in favor of a third party not previously understood to hold the rights of a parent. Alternatively, the U.S. Supreme Court might be prepared to recognize parental interests in a person who intends, and is intended by the conceiving parent, as the second of the two parents a child would have. Especially given Obergefell v. Hodges, it seems possible that the Court would recognize and want to rectify the earlier dilemmas faced by same-sex couples choosing to have a child together. Looking at the Court as currently constituted, I would cautiously expect a majority to side with folks like Eve, doing her best to parent with every intention of holding both rights and responsibilities belonging to “true” parents. But we cannot know for sure until a case like this reaches the Supreme Court. Let us hope that by then, fewer and fewer of these tragic scenarios remain, because of the egalitarian strides our law has made since Alison D. was first decided.