THREE PARTIES, THREE PARENTS

MATTER OF DAVID S. v. SAMANTHA G., 2018 NY Slip Op 28110 - NY: Family Court 2018:

"The landmark Court of Appeals case Brooke S.B. changed the legal landscape regarding the rights of a partner who is not a legal parent to seek custody and visitation. Brooke S.B. 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 standing to seek visitation and custody under Domestic Relations Law §70" (id. at 15). Domestic Relations Law §70 (a) provides:

Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly (emphasis added).

Significantly, Brooke S.B. overruled the Court's ruling in Allison D. v Virginia M. (77 NY2d 651 [1991]), which denied a partner who lacked a biological or adoptive relationship with a child the right to seek visitation under DRL §70(a), despite having an established "parental" type relationship with the child. In determining to break with precedent, the Brooke S.B. court gave primary consideration to the well-being of children being raised in nontraditional families and to how the Allison D. decision had negatively impacted those children (Brooke S.B. at 19-29). In making its ruling, the Brooke S.B. court also recognized the fundamental right of parents to control the upbringing of their children and required that the relationship between the child and the partner came into being with the consent of the legal parent (id. at 26).

In reaching its decision, the Brooke S.B. court relied heavily on the dissent of Judge Kaye in Allison D. Judge Kaye foresaw that the Allison D. ruling would "`fall [] hardest' on the millions of children raised in nontraditional families — including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents" (Brooke S.B. at 20 citing Allison D., 658-660 [Kaye, J. dissenting].) "The dissent asserted that, because DRL §70 does not define `parent' — and because the statute made express reference to `the best interests of the child,' the court was free to draft a definition that accommodated the welfare of the child" (id.). The dissent criticized the majority for turning its back "on a tradition of reading section §70 so as to promote the welfare of the children" (id.).

In determining to overrule Allison D., the Brooke S.B. court also noted that legal commentators have "taken issue with Allison D. for its negative impact on children" and that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of the figure's biological or adoptive ties to the children" (id. at 25-26 [citations omitted]).

Against this backdrop, this court is now called upon to determine if the ruling in Brooke S.B. would be applicable to the situation at hand, where three — not just two — parties agreed to a preconception plan to raise a child together. It is not disputed that Ms. G. and Misters S. and T. consented to a preconception plan to establish a family where the child to be conceived would have three parents (albeit in two homes) and proceeded to effectuate that plan. The two men alternated the delivery of their sperm day by day to artificially inseminate Ms. G., and the three parties jointly announced their impending parenthood when Ms. G. became pregnant. The three parties jointly chose and paid for the midwife, were present when the child Matthew was born, and selected names for the child that recognized all three parties. The three parties agreed on a pediatrician and on a health insurance plan, and were all present at the hospital when Matthew needed hernia surgery at the age of two months. Misters S. and T. currently enjoy regular parenting time with Matthew.

The court finds that under the above circumstances where the three parties entered and followed through with a preconception plan to raise a child together in a tri-parent arrangement, the biological father's spouse has standing to seek custody and visitation as a parent pursuant to Brooke S.B. In making this decision, this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.

The court further finds that its ruling that Mr. T. has standing to seek custody and visitation despite the existence of two legal parents, to be consistent with the fundamental principle of Brooke S.B. — that DRL §70 must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure (id. at 20). The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.^["