Same Sex Parent Rights: the Changing Laws for LGBT in New York

Posted by Long island Divorce & Family Law Attorneys on December 8th, 2016

On Long Island, same sex couples are gaining new family law rights and responsibilities. New York courts have begun to change the way they interpret family law for LGBT families. Several cases that have come down in New York suggest that this is the case. Though marriage equality has been the law in New York for some time, it generally takes individual cases in order to change the way that other existing laws are applied to same sex marriage and other arrangements that were not previously addressed by statute.

Non-Biologic Nor Adoptive Parents Gaining Parental Rights

For example, in the Matter of Brooke S.B., the New York Court of Appeals held that a lesbian parent of her spouse’s biological child had rights to custody and visitation. Prior to this decision, lesbian parents who were legally married but had not adopted the biological children of their spouse were not considered legal parents of that child. Because under the law they were not biological parents and had not adopted the child, they did not have standing to sue for child custody or visitation. While prior cases enforced the view that only biological or legal adoptive parents had rights to the children, the courts are taking a more progressive view that acknowledges that New York families are changing.

‘De Facto’ Parents Rights & Responsibilities

This holding set a new standard for parenthood, acknowledging that the former standard was unsustainable. In fact, if an individual can show by clear and convincing evidence that they are a “de facto” parent, meaning that the facts clearly and convincingly show that they are the parent figure in the child’s life, then they can be entitled to the rights and responsibilities of parenthood. Other cases that have come down to support this view.

The Child’s Best Interest is the Standard

The evolving standard supports the child’s interests in maintaining a relationship with their primary caregivers. In psychology, the importance of maintaining that connection to the child’s “attachment” figures (usually primary caregivers from an early age) is critical for children’s psychological and emotional development.

As a result, the law’s changing view reflects the commitment to the “best interests of the child” standard, which encourages courts to assess the totality of the circumstances and determine which outcome will best serve the child or children involved. The holding in the Matter of Brooke S.B. as well as other similar cases coming down in New York, further support this standard, particularly as it concerns the child’s interest in maintaining a relationship with a person who had been a parent to them, whether or not that person was a biological or adoptive parent.

Child Custody, Visitation and Support

While this new trend applies to rights of custody and visitation, it also applies to the responsibilities inherent in parenthood, such as attending to the child’s medical, educational, and financial needs. In fact, at least one court has ordered a non-biological, non-adoptive parent to pay child support. In that case, the parent had sought and was granted visitation with the child.

Long island Divorce & Family Law Attorneys is the author of this article on custody and visitation. Find more information, about Long Island Family Law Attorneys here