A recent Court of Appeals decision,  Matter of Sharon S.B. v. Elizabeth C.C. changed the definition of “parenthood” in New York State, expanding the definition beyond biological parents.  This case does not give step-parents standing to seek visitation or custody of step-children, but it is a stepping stone in the process. This case gave standing to non-biological, non-adoptive, “de facto” parents in very specific circumstances. Matter of Brooke S.B. v. Elizabeth A.C.C., 28 NY 3d 1 (2016), 2016 NY Slip Op. 05903.

But, the Court made a caveat which prevents this decision to directly apply to step-parents: the parties must have together agreed to conceive and co-parent the child. Step-parents generally come on the scene later than the making of the conception with someone other than them decision. The Court went to great lengths to assure this. Specifically, the Court held that:

  • “A person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law Sec. 70, in accordance with the test outlined….”
  • And the test is: “…where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.” Ibid. at  28.

Though this case, and the companion cases determined with it, addressed same sex couples, which is an absolute boon to the children of these couples, the principles behind it are not limited to same sex couples. As with any matters of child custody and visitation, the best interests of the child are of paramount concern, which New York has completely ignored in determining standing in these cases. The same disregard is shown in step-parent standing for these children.

“Standing” is the requirement that a person who brings a lawsuit be a proper party to request adjudication of the particular issue involved. In NY Domestic Relations Law §70, the term “parents” in a custody action has been limited to biological parents.  This is why the non-biological member of a same sex couple and step-parents alike had no right to seek custody or visitation. Petitions for that relief would simply be dismissed. This case changes that in specific situations for same sex couples, as set forth in the above quotation.

Back to best interests of the children. Many other states, including Oklahoma, Arizona, New Jersey and more, have statutes and case law recognizing the import of standing for  “de facto” parents. This includes those individuals with no biological connection to the child/children, but with an established an emotional and psychological parental relationship. New York is behind the curve on this, with this case only being one step in the correction of the abandonment of the best interests of children in the face of losing a de facto parent completely. One does not need a degree in psychology to know, without a doubt, that removing a fit, involved de facto parent from a child after 2, 3, 5, 10 years as the acting parent (usually father) will cause emotional and psychological damage to a child.

Yet, New York maintained a cavalier disregard of the emotional and psychological well-being of these children, forcing them to bear that damage without remedy. It is morally reprehensible, yet New York continues to visit this horror upon our children. Matter of Brooke S.B. is the first case recognizing this gross flaw in determination of the best interests of children, and it is huge. An absolutely stunning recognition of the problem that has always existed and which needed correction. Though it is worthy of note that step-parents can be tapped for child support of a child they have no right to see and they have no standing, rights or remedy to see that child. New York recognizes only an obligation of step-parents, but grants them no rights.

As to step-parents, there are hurdles yet to be jumped before their import in the lives of children is recognized, but this is how laws change. One case at a time, and only the cases that are appealed. Trial court decisions have little impact in changing the law, but for the fact that they make the foundation to create the appeal. This case acknowledges the negative emotional and psychological impact on children who lose the non-biologic same sex

The New York Court of Appeals was very clear, repeatedly writing that this determination was limited to the facts before it, refusing to make a determination beyond the facts of the parties agreeing to conceive and co-parent, with proof by clear and convincing evidence of these facts, to obtain a grant of standing. The Court did not want to open the floodgates for step-parent rights. Clearly. But in the mere act of trying to keep those floodgates closed, there is a tacit acknowledgment that there is something behind those floodgates, and it is thousands of step-parents that should be entitled to standing. And, worse, the ongoing emotional and psychological devastation perpetrated upon children who have had a fit, involved de facto parent ripped from their lives. The situation is nothing less than heartbreaking.

Some of the hurdles that will have to be jumped for step-parents to attempt to gain standing:

  • Constitutional impediment in that biological parents have a constitutional rights to bring up their own children and make decisions for them. How do de facto parents fit into these constitutional rights of biological parents?
  • With two living, involved biological parents, whose “parenting time” will be forfeited for the de facto parent’s time with the child?
  • How best to overcome the need for agreement between the parties to “conceive and raise the child as co-parents.
  • What will the real test be to determine if someone is a de facto parent entitled to custody rights of the child?

Jumping these hurdles will not be easy, but the efforts should not be given up merely because it will be difficult. Loved children deserve the efforts. All it takes is the right case, taken up on appeal to open the doors. It can happen. It should happen or New York cannot rightly claim that decisions make paramount the best interests of the children.

If you would like to discuss issues of custody and visitation for step-parents, please Contact Diana, or call 315-565-2760.