Janice R., that ex-partners who were not biologically related to the child of the partnership, did not adopt, and were not married at the time of the birth not only lacked rights to the child but also lacked even standing to argue for rights to that child. Elizabeth A.C.C., the court promulgated a new rule “that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.” This was a sharp reversal of the long-standing New York law, promulgated in Alison D. In August 2016, the New York Court of Appeals, the highest court in New York State, expanded the definition of “parent” to include gay and lesbian parents who had not been legally recognized via the existing avenues-biology, adoption, or marriage. The fact that she does not have a biological tie to the child-or that she and her partner are both female-should not preclude Brooke from also being considered a parent of their child. Today, after the United States Supreme Court has declared that all couples have the equal right to marry and state laws have shifted increasingly to support adoption by gay couples, many people think this outcome is wrong Brooke should be recognized as a parent. was not a parent and could not even appear in court to argue that she was. The child called Brooke “Mama B.” But under the law in the state of New York, Brooke B. She and her partner Elizabeth began to raise the child together and introduced themselves as co-parents. Brooke was present for the birth in June 2009 and cut the umbilical cord. She and her partner decided to have a child together, conceived, and jointly planned for the birth. Lastly, it will propose avenues for strategic litigation to ensure an equal right to parent for all parents nationwide.īrooke B. Elizabeth A.C.C., 61 N.E.3d 488 (2016), and draw conclusions about the best rule to protect all groups. It will analyze the New York Court of Appeals’ recent decision in Brooke S.B. Then it will discuss various proposed rules and the ways in which they fail to achieve both equality for gay parents and strong protections for parents at risk of losing their parental rights. It will describe the existing strong constitutional protections for parental rights and the situations in which those rights are at risk. This article will address the need for an equal default rule for unmarried, gay parents to be recognized in the same way as unmarried, straight parents. Any new law must be narrowly tailored to avoid inserting courts and non-parents into families, which would undermine parents’ constitutional right to make choices for their children and their families. While there is significant overlap between poor parents and parents of color on the one hand, and gay parents on the other, commentators and advocates typically focus on just one group’s distinct interests and not on both groups together.Īs states develop laws to ensure equal protection for gay parents who choose to have children together and not to marry, lawmakers must also consider how those laws affect existing parents’ rights.
These parents are overwhelmingly poor people and/or people of color. Few commentators have addressed the interaction of this expanded recognition of parental status with the existing rights of the parents most at risk of losing their parental rights-those involved in child welfare cases. This change reflects the growing understanding that gay individuals and couples should be treated equally to straight individuals and couples. In August 2016, the New York Court of Appeals overturned its prior decisions and found that an unmarried, gay, female co-parent of a biological mother had standing as a parent to seek parental rights to the ex-couple’s child.
While gay partners may now legally marry throughout the United States, not all states have provided an equal opportunity for gay parents to obtain parental rights, whether through biology, legally recognized partnership, adoption, or other means. Parents are legally recognized in three ways: through marriage, adoption, and biology.