For twenty years, the New York Court of Appeals has refused to consider the best interests of children in cases in which a non-biological, non-adoptive parent petitions for visitation rights. In Debra H. v. Janice R., 14 N.Y.3d 576 (2010), the Court of Appeals upheld Matter of Alison D. v. Virginia M, 77 N.Y.2d 651 (1991) in which it held that only a child’s biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent.
In both cases, the petitioner’s same-sex partner had agreed to share the responsibility of raising her own biological child with petitioner. Both Courts acknowledged that evidence showed that the petitioner had been a loving and caring parental figure in the child’s life , but both Courts refused to recognize the petitioner as a “parent” under Domestic Relations Law §70.
As the dissent in Alison D. points out, this rule effects “a wide spectrum of relationships- – including those of longtime heterosexual stepparents, “common law” and non-heterosexual partners such as involved here and even participants in scientific reproduction procedures.”
“In countless cases across the state, the lower courts, constrained by the harsh rule of Alison D., have been forced to . . . permanently sever strongly formed bonds between children and adults with whom they have parental relationships.”
In her opinion concurring in the result of Debra H. (the majority granted standing to the petitioner based on parentage created by the couples Vermont civil union), Judge Ciparick argued that under Domestic Relations Law §70, a person petitioning for visitation who is unrelated to the child by biology or adoption, should be granted standing after proving the biological or adoptive parent encouraged the formation of a parental relationship and the petitioning parent intended to and did assume a role as the child’s parent.
Other jurisdictions have adopted similar tests. In Bethany v. Jones, 2011 Ark. 67 (2011), the Supreme Court of Arkansas granted petitioner standing to seek visitation with the child of her same-sex partner. Finding ample evidence of the relationship between the petitioner and the biological child of her partner, the Court upheld the lower court’s holding that petitioner stood in loco parentis to the child. See also Matter of Custody of H.S.H. –K., 193 Wis 2d 649 (1995) in which the Wisconsin Supreme Court established a “flexible, multi-factored approach to determine whether a parental relationship exists.”
The legislature did not provide a definition for “parent in Domestic Relations Law §70. What the legislature did express in this law was the courts’ role in protecting the best interests of children. The Court of Appeals should acknowledge this role by granting standing in visitation proceedings to New Yorkers who have formed a parental relationship with children with whom they are not related to by biology or adoption.