Guilderland, NY – In two prior articles, we discussed how the definition (and creation) of families has changed over time, and how the law is beginning to keep pace with advances in medicine and changes in social values.
In 2016, our highest court in New York State, the Court of Appeals, rendered a decision in the Matter of Brooke S. B. v. Elizabeth A. C.C., which altered (and expanded upon) the custodial rights of non-parents. We first told you about this case in our February 2016 article, and described the facts of the case and the decision in detail in our September 2016 article.
In Brooke S.B., the Court of Appeals specifically overruled the prior case on the rights of non-parents (known as the Alison D. case), and held 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 the right to seek visitation and custody of the child. The Court, however, left the door open as to the rights of third party non-parents (neither biological nor adoptive) when the parent(s) of a child encourage and foster the formation of a parent-child relationship between the third party and the child.
The aftermath of the Brook S.B. case is already starting to take effect. A recent case was decided out of the Suffolk County Supreme Court that addressed the rights of a third party non-parent vis-à-vis the biological parents of a child. In Dawn M. v. Michael M.1, a married couple (“Michael” and “Dawn”) befriended a neighbor (“Audria”), and later developed a romantic relationship with her. Since Dawn could not conceive a child, the three of them agreed that Audria would conceive a child (“JM”) with Michael, and the three of them would parent JM together. After the birth of JM, the trio lived together happily and shared parenting responsibilities of JM for approximately one year. Thereafter, Dawn and Michael divorced, and Dawn moved in with Audria and continued a romantic relationship with her. After divorcing Michael, Dawn sought custodial rights to JM. Audria agreed to this, but Michael objected and argued that Dawn had no right to JM because she was not a biological nor adoptive parent. The Court disagreed, and held that Dawn could seek custodial rights to JM because “a person is responsible for the natural and foreseeable consequences of his or her actions especially when the best interests of a child is involved.” In other words, Michael could not undermine Dawn’s right to seek custodial access to JM because he encouraged and fostered a parent-child relationship between Dawn and JM.
The Dawn M. case has created, for the first time, a legal basis for three people to fulfill the role of “parent” to a child. While this may seem foreign, the Dawn M. case expanded upon what we already have in our society, with extended families and step-parents often fulfilling traditional parental roles. As the old saying goes, it takes a village to raise a child.
Leyla A. Kiosse is a partner at Tabak & Kiosse, LLP, a law firm located in Great Oaks Office Park (near Crossgates Mall). Along with her partner (Margaret Tabak), Attorney Kiosse counsels clients on all matters related to matrimonial and family law. A Guilderland native, Attorney Kiosse received her undergraduate degree from Union College and her law degree from Albany Law School. If you have questions about a matrimonial or family law issue, contact Attorney Kiosse for a consultation by calling 464-4095 or by visiting the firm’s website, www.tklawllp.com.