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In the Matter of Brooke, Respondent v. Elizabeth A.C.C. Respondent


This case calls on the court to assess the continued fairness of a rule discussed originally in a case known as the Matter of Alison D in Virginia (77 NY 2d 651 [1991]/ Where an unmarried couple has a child, and one partner doesn’t have a biological connection to the child. This affects the child’s parent in terms of standing to seek custody and visitation pursuant to Domestic Relations Law section 70 (77 NY 2d 655). The petitioners seek custody and visitation in the present case. The court agrees that the definition of a parent as established in the older case has now become unfair.

The Petitioner and Respondent were involved in a romantic relationship back in 2006 and subsequently announced their engagement. It was only just a gesture because legally at the time the couple could not get married. Same-sex marriage was not legal in New York, and they did not have the resources to travel out of state.

They decided to have a child together. In 2008, the respondent became pregnant via artificial insemination. The Petitioner was involved throughout the pregnancy. They raised the child jointly as a couple. However, in 2013, their relationship ended.

The Respondent moved to dismiss the Petition, stating that the Petitioner lacked standing under the Domestic Labor Relations Law sec. 70, as intercepted in Alison D., because one of the parents was not considered biological.

The Petitioner filed this proceeding requesting joint custody. An attorney was appointed to the child. The attorney determined that it would be best for the child to have visitation with the Petitioner.

The Respondent says that the Petitioner lacks jurisdiction under the Domestic Relations Law sec. 70, because in the absence of a biological connection. The petitioner and the child’s attorney oppose the motion, in light of the Marriage Equality Act (also see the Domestic Relations Law sec. 10-a), the rule in Alison D is no longer relevant. They also agree that the petitioner’s parental relationship established standing under the principal of equitable estoppel.

The Petition was dismissed. The Family Court noted that the Petitioner didn’t adopt the child and had no biological connection with the child. The attorney for the child appealed.

The Appellate Court unanimously affirmed (129 AD 3d 1578, 1587-1579 [4th Depart. 2015]. The court said that the case of Alison D had prohibited the Family Court from ruling that the petition had standing for custody and visitation.

There are many interesting legal issues that are coming up in the courts now since the case of Obergefell v. Hodges 135 S. Ct. 2584, and similar same-sex issues. Now because of the increased popularity of same-sex couples having children, a whole new batch of issues arises. This is a very dynamic area of law and is evolving over time.

If you or a loved one has a family law matter, relating to custody, divorce or adoption, it is important to speak with skilled legal counsel to ensure that your rights are protected. Contact Stephen Bilkis and Associates for guidance and a free consultation. We have offices to serve you throughout the New York area, including offices in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Nassau County, Suffolk County or Westchester County. Call us today to schedule an appointment at 1-800-NYNYLaw.

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