Same-Sex Parenting Rights Expanded

On September 27, 2017, the Family Court, Nassau County, issued a decision finding that a non-biological mother, J.C., had standing to seek custodial and visitation rights for two subject children who were the biological children of the respondent, N.P. This case, titled J.C. v. N.P., is a next step on the question of same-sex parenting rights following the Court of Appeals’ decision In the Matter of Brooke S.B., 28 N.Y.2d 1 (2016).

The Court of Appeals in Matter of Brooke granted an unmarried non-biological parent the ability to seek visitation and custody with the subject children due to the existence of a pre-conception agreement that proved the couple’s intent to create a parental relationship between the children and non-biological parent. The Court of Appeals in that case determined that the non-biological parent must demonstrate the existence of such an agreement by clear and convincing evidence.

The Brooke Court, however, explicitly declined to set a standard for cases where the parties in question did not have a preconception agreement. In this case, J.C. and N.P. had no such pre-conception agreement. Family Court Judge Thomas Rademaker, using the Brooke decision and the doctrine of equitable estoppel for guidance, examined the facts surrounding the birth of the two subject children and the relationship between the two parties to determine whether a parental relationship should be recognized.

N.P. was artificially inseminated and became pregnant almost immediately after the beginning of the parties’ relationship. They attended prenatal appointments together and lived together in each other’s separately owned homes during the pregnancy. When N.P. gave birth, J.C. was the only person other than the medical staff present in the delivery room, and she stayed overnight for the entirety of N.P.’s hospital stay. The parties set up a nursery, made a “baby memory book,” and kept pictures of both parties with the child, CC. N.P. was referred to as “Momma” and J.C. was referred to as “Mommy,” by the child and each other.

The parties planned and attended CC’s baptism, which J.C. partially paid for and invited many of her family members to attend. Both parties cared for the child, jointly and individually, and they were generally viewed as a family by the child’s doctors, babysitters, and others in their lives. N.P. subsequently became pregnant via artificial insemination a second time and gave birth to AJ, who was raised by both parties in the same arrangement as CC. Eventually the parties’ relationship ended, but they continued to co-parent the children.

The court found less credible evidence that was offered by N.P. to undermine the nature of J.C.’s relationship with both children, including the claim that N.P. instructed a photographer to exclude J.C. from a “family” portrait and that she wrote an email designating J.C. as CC’s parent in case of an emergency only under duress. In the court’s view, the parties’ actions taken together constituted clear and convincing evidence that the parties considered J.C. a parent to both of N.P.’s biological children even after their romantic relationship ended. As a result, the Family Court found J.C. to be a “parent” of the subject children pursuant to the terms of the Family Court Act and allowed her to seek visitation with and custody of them.

This case indicates that courts in this state are likely to continue to equalize the parenting rights of same-sex parents who lack the biological connection of different-sex parents but who raise their children in a family setting that is otherwise indistinguishable under the law. In the wake of the social and legal changes of the last decade, there should be no legally cognizable reason why an unmarried man who raises his partner’s child as his own should be treated differently than an unmarried woman who does the same. This decision furthers the interests of children raised in such a household, by protecting the parental bonds they formed with both parents regardless of their gender.