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A PARTNER WITHOUT AN ADOPTIVE OR BIOLOGICAL RELATION TO A CHILD CAN NOW SEEK CUSTODY OR VISITATION IN NEW YORK STATE

Kahn and Richardson - Wednesday, February 01, 2017

In August 2016, the New York State Court of Appeals overturned prior law that had precluded a partner of a biological parent from seeking custody or visitation rights with a child under New York State Law. The Court of Appeals held that, with respect to an unmarried couple, if a partner establishes by clear and convincing evidence that the parties agreed to conceive a child and raise it together, the non-biological, non-adoptive partner has standing in the Courts to seek custody and visitation.

While the Court of Appeals is ordinarily required to follow its own precedents, it found that extraordinary circumstances exist that undermine the reasoning and practical viability of prior law. In particular, the Court found that "the foundational premise of hetero-sexual parenting and non-recognition of same sex couples is unsustainable." The Court held that this was particularly so in light of New York's passage of the Marriage Equality Act in 2011 and the 2015 United States Supreme Court decision legalizing same-sex marriage. The United States Supreme Court noted that the right to marry provides benefits not only for same sex couples, but also for the children being raised by those couples.

The New York State Court of Appeals noted that its decision this summer was limited to the issue of standing and that the ultimate determination of custody and visitation rights must be decided by the Trial Court, which will determine the best interests of the child.


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Practice Areas
  • Divorce
  • Separation Agreements
  • Custody & Visitation
  • Property Division
  • Spousal Maintenance
  • Child Support
  • Prenuptial Agreements

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