Over the course of several decades, New York has been a player in the development of parentage rights. Not always a good player, but a player nonetheless. In a recent opinion, K.G. v. C.H., an appellate court in New York took another step towards hammering out the rights of lesbian co-parents. It held that the pre-adoption agreement of two women, signed years before one of them adopted a child, did not survive the dissolution of the adult relationship. This case called for the court to interpret a recent, important decision of the state’s highest court, in which it recognized for the first time that a non-biological co-parent could have standing to sue for custody or visitation.
Lesbian Co-Parentage in New York
Same-sex couples now have the right to marry based on the Supreme Court’s 2015 ruling in Obergefell v. Hodges. This clarified many rights for such couples, including, at least in some states, the benefit of the marital presumption that may allow a spouse to be treated as the legal parent of her partner’s child despite the lack of a biological connection. But long before Obergefell, courts were asked to resolve disputes between unmarried, same-sex couples who had formed families and raised children together, often without the benefit of formal legal protections. Parentage issues—the determination of which adults have rights and obligations with respect to which children—arise in a variety of contexts in the age of the new family.
Over several decades, courts developed a number of doctrines that allowed the formation of enforceable legal ties between lesbian co-parents and the children they were raising. These doctrines remain relevant today for couples who do not marry, as well as for those who do but are not afforded the benefits of the marital presumption.
De facto parentage is one of the doctrines that arose from this era. Wisconsin was the first to recognize de facto parentage. In a 1995 case, In re Custody of H.S.H.-K, the state’s highest court set forth a four-part test to determine whether a non-legal parent qualified as a de facto parent. Several states have adopted some form of the test. In its typical formulation, the doctrine requires not only that the co-parent function as a parent, but also that the legal parent consented to the creation of the functional parent–child relationship and actively fostered its growth. Although the doctrine varies from state to state, it typically does not give rise to rights equivalent to a legal parent’s. Rather, it allows the de facto parent to seek visitation, but not custody. Courts in states that recognize de facto parentage justify the intrusion into the legal mother’s constitutionally protected parental rights by pointing to her role in creating and fostering the relationship with the co-parent. The doctrine has been controversial; some state courts have endorsed it, while others have rejected it. (I have covered some of these developments here, here, here, here, and here.)
In New York, the state’s highest court had twice rejected the doctrine of de facto parentage, seventeen years apart. In Alison D. v. Virginia M., one of the first cases in which lesbian co-parent rights were litigated, the court held that a mother’s lesbian partner was not a “parent” within the meaning of the custody and visitation statute. When the court agreed to review a case presenting the same issue in 2010, it was widely expected that it would reverse itself—given the dramatic change in the law and social norms surrounding parenting by same-sex couples. But it did not. In Debra H. v. Janice R. (2010), the New York Court of Appeals again rejected the doctrine of de facto parentage in order to promote “certainty in the wake of domestic breakups” and avoid “disruptive battles over parentage.”
Although Debra H. seemed like the end of the road, given that the opinion was issued well into the modern era of LGBT parentage rights and after some states had legalized marriage by same-sex couples, the same court finally reversed itself, six years later. In Brooke S.B. v. Elizabeth A.C.C. (2016), the court held that “where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.” In each of these cases, the court was interpreting N.Y. Domestic Relations § 70, which allows “either parent” to petition for custody of a child. The court’s holding in Brooke provided a new avenue for a lesbian co-parent to claim the status of “parent” at the outset in order to have standing to petition for custody.
The court expressly reserved the question whether a co-parent who came onto the scene after conception of the child could be treated as a de facto parent, opting for a narrow holding that would “protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children.” Like the Maryland court, the New York court created a path to de facto parentage by re-characterizing the co-parent’s claim. “Here,” the court wrote, “we do not consider whether to allow a third party to contest or infringe on those rights; rather, the issue is who qualifies as a ‘parent’ with coequal rights.”
K.G. v. C.H. (2018)
In this case, an intermediate appellate court considered the applicability of Brooke S.B. to a couple who signed a pre-adoption agreement to co-parent an as-of-yet-unidentified child but broke up years before one of the women adopted a child from a foreign country. Here’s the story that led them to a 36-day trial in a New York court, fighting over the parentage of a child known to the court as “A.”
In 2007, C.H. and K.G. were in a romantic relationship. The parties agree that they entered into an agreement that year to adopt and co-parent a child, but they disagree about whether that agreement survived their breakup in 2009. The 2007 plan was for the two women to pursue an intercountry adoption and raise the child together. They envisioned that C.H. would adopt the child initially, given rules in most countries that same-sex couples cannot jointly adopt, and that K.G. would pursue a second-parent adoption back home. They also bought an apartment together, entered into a cohabitation agreement, and designated the home a “familial residence.” They agree that the purchase of the apartment was made with an eye towards adopting and raising a child there.
In February 2009, C.H. filed a petition for an intercountry adoption. Only C.H. was listed on the petition, and K.G. was identified as a household member. They both participated in the requisite home study, background checks, and so on. Later that year, however, the women ceased being in a romantic relationship. In email exchanges, among other ways, the two women discussed whether to proceed with an adoption given the breakup. They continued to live in the same apartment, but in separate bedrooms.
The year 2010 was spent disentangling from one another, emotionally and financially. The email exchanges show the shift to friendship. They also suggest that C.H. continued plans to pursue adoption, and that K.G. acknowledged she was no longer involved in that plan. In May of that year, the two women entered into a separation agreement that did not mention adoption, but did terminate their cohabitation agreement and end joint ownership of real estate.
In March 2011, an adoption agency identified a child in Ethiopia for C.H. to adopt. These developments triggered many back-and-forth emails between the two women about the adoption process, with many suggestions by both women that the child would belong only to C.H. C.H. brought the child home in August of that year, and the adoption was completed in New York in January 2012. K.G. did not petition for a second-parent adoption, and the parties agree they never discussed that possibility after the adoption agency first identified the child that C.H. would eventually adopt.
Although K.G. did not adopt C.H.’s child, she and her extended family had regular contact with A., and the parties agree that K.G. has a “loving and affectionate” relationship with the child. They disagree, however, about the extent to which the relationship is “parent-like.” At some point, C.H. expressed a desire to move to London, from where she came, and that precipitated K.G.’s decision to petition for formal parental rights.
After a lengthy trial, the court found C.H.’s version of events more credible, which led it to conclude that “the parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship.” Therefore, by the time C.H. adopted A., she did it as a single parent, and K.G. did not have standing to petition for custody. On appeal, the court upheld this ruling, but remanded for consideration whether K.G. might have a viable claim of equitable estoppel that, although based on a different legal theory, might allow her to obtain custodial rights.
An important legal question in this case was whether an agreement to adopt could be a basis, under Brooke S.B., for an exception to the general rule that only a recognized legal parent has standing to petition for custody. Both the trial and appellate courts treated the concept of a pre-adoption plan as equivalent to a pre-conception plan for a biological child (with donor sperm or embryos). This is undoubtedly the correct stance, since the basis for parentage in Brooke S.B. was joint intent to parent, a standard that can be satisfied regardless of whether parenthood is achieved through adoption or biology. Moreover, New York, like most states, has a longstanding policy that treats adoptive and biological children equally.
The question then became a factual one: did the two women who at one point agreed to adopt and parent a child together have that intent at the time one of them actually adopted a child? K.G. argued, somewhat unpersuasively, that once the parties made a plan to adopt a child, she was possessed of legal standing to sue for custody of any child that her then-partner later conceived or adopted. One could imagine many situations in which this reading of the law would produce perverse results. A person could become a parent many years and many partners after entering such an agreement; it would make little sense to tie the new parent to an old partner and co-parent just because they once had formed a plan to parent together. The exception recognized in Brooke S.B., like the broader de facto parentage doctrine, is premised on the idea that intent can substitute for biology in establishing legal parent status. But the intent is not abstract or in a vacuum—it is intent to conceive or adopt a child at a particular point in time with a particular partner. If the child’s conception or adoption occurs in some other context, it is most likely not in the child’s best interests to have two unrelated parents who did not together arrange to become parents.
Squaring Lesbian Co-Parentage and Constitutional Parental Rights
In fact, an interpretation as broad as K.G. urged would raise serious constitutional questions about the parental rights of the established legal parent. Legal parents are endowed with constitutionally protected rights that include “care, custody, and control.” Implicit in those rights is the choice to exclude other adults from the child’s life. Just as parents have the right to decide where and how to educate their children, they have a right to decide in ordinary circumstances whether their children will have contact with other adults. While fit parents do not have absolute power over their children or the relationships they are entitled to have, their preferences control in most cases when challenged by a non-parent. And, in a dispute over custody or visitation, the parent and non-parent are not on equal footing; their dispute cannot constitutionally be resolved based solely on the best interests of the child.
A legal parent can consent to share parental rights—via allowing another adult, such as a spouse, to adopt; by signing a temporary or permanent custody agreement; or by fostering the creation and development of a parent-like relationship between the child and another adult. De facto parentage can be squared with the constitutional rights of the biological mother because, in its traditional iteration, it requires proof that the de facto parenting relationship was consented to and fostered by that mother. In lesbian co-parent cases, it is often the case that the “non-parent” who is seeking rights should properly be understood to be an unrecognized, yet co-equal parent.
The court’s ruling in Brooke S.B. squares the co-parent’s claim with the biological mother’s constitutional rights in the same way. When one woman jointly plans to conceive and raise a child with her female partner, she has exercised her right of parental autonomy by agreeing to share rights with another adult. The two women, in this view, come to parenting with equal status, albeit by different means. A woman who wants the exclusive right to parent can protect herself by refusing to make such a joint plan; but once she does, she cannot unilaterally terminate the rights of the other parent.
But none of this means that K.G. must be recognized as a parent of C.H.’s child. If the trial court was right to find that the adoption agreement did not survive their breakup, then there was no plan to co-parent when A. was adopted. This case correctly preserves the general rights of lesbian co-parents, but also gets it right when it said this particular woman isn’t one.