By now most New York family law practitioners have heard that the Court of Appeals has overruled its decision in Alison D. v. Virginia M. (77 NY2d 65 ).
Twenty-five years ago the Alison D. case set the bounds for the definition of “parent” for purposes of legal standing to petition for custody or visitation under Domestic Relations Law § 70 (a). In Alison D. the Court held that even if the party seeking custody or visitation had an “established relationship with the child,” that party was not a “parent’ under the Domestic Relations Law, effectively limiting the parental relationship to a party who has a biological or adoptive relationship to a child.
The Court of Appeals now says that “in light of more recently delineated legal principles, the definition of ‘parent’ established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” Brooke S.B v. Elizabeth A.C.C. and Estrellita A. v. Jennifer L.D. ((2016 Slip O. 05903, Aug. 30, 2016).
Both of the cases reviewed by the Court involved children from same-sex relationships. In Brooke B., in 2006 the parties entered into a relationship and later became engaged, although they could not marry legally in New York. The parties wanted to have a child and agreed that Elizabeth C.C. would be impregnated via artificial insemination, which occurred. Brooke B. attended prenatal doctor visits with Elizabeth and was present and involved in the birth of a son, who was giving Brooke’s las name. The parties lived with the child an parented him jointly.
However, in 2010 the relationship ended. At first, Elizabeth allowed Brooke to have regular visits with the child, but that ended in the summer of 2013 when Elizabeth terminated Brooke’s contact with the child. Brooke, seeking visitation, filed in the Family Court. Elizabeth moved for a dismissal, citing Alison D.
The Family Court dismissed Brooke’s petition, and the attorney for the child appealed. The Fourth Department Appellate Division unanimously affirmed the Family Court ruling, and the Court of Appeals granted leave to appeal to the attorney for the child.
The backstory in Estrellita A. is very similar to that of Brook B. However, it was Jennifer D., the party who is the biological mother of the child who first applied to Family Court — seeking child support from Estrellita A, who denied liability. However, while the child support case was pending, Estrellita A. filed a Family Court petition for visitation. The Family Court awarded Jennifer child support, holding that Estrellita was a “parent” and thus chargeable with child support. Jennifer then moved to dismiss Estrellita’s visitation action, claiming that Alison D. precluded Estrellita’s standing.
The Family Court agreed that Estrellita did not have standing under equitable estoppel or status as a de facto parent, but held that under judicial estoppel Jennifer’s claim in the support action that Estrellita was the child’s parent estopped Jennifer from a contrary assertion in the visitation proceeding. After hearing, Estrellita was granted visitation and Jennifer appealed. The Second Department Appellate Division affirmed the Family Court decision, stating that Alison D. “does not preclude recognition of standing based on the doctrine of judicial estoppel.”
The Court of Appeals reversed Brooke B. and affirmed Estrella A., and took the opportunity to examine and overrule Alison D., noting that “in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term ‘parent.’ Now we find ourselves in a legal landscape wherein a non-biological, non-adoptive ‘parent’ may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding, yet denied standing to seek custody or visitation.” Going further, the Court said, “Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v. Hodges (576 US ___, 135 S. Ct. 2584 ), which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.”
The decision in Booke S.B. was immediately recognized by the legal community as a major case. As an analysis of how society’s thinking has changed over the 25 years since Alison D., the decision is informative. As an example of how legal opinions evolve over time, the decision is instructive. As the portent of a fundamental shift in New York law, the decision is groundbreaking. This is one of those rare instances in which every family law practitioner needs to get a copy of the decision, read it carefully, and keep it close at hand.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.