Some 18 months ago, I wrote about an important decision, Brooke S.B.1, by the New York Court of Appeals, which is the highest court in New York. (You can see that blog post here.)
In Brooke, the Court determined that the non-biological mother in a same sex couple had standing to request custody or visitation of the child she helped to raise. The Brooke court found that it was in the child’s best interest to continue that relationship, and found it particularly pertinent that both parents had planned and conceived the child together.
Now, Brooke has been extended to include the non-biological husband of a biological father, where the child already has two legal parents. The case, Matter of David S. vs. Samantha G., comes out of New York County Family Court by Judge Carol Goldstein.
The case involves three friends: Samantha, David, and Raymond, who decided over brunch to conceive and raise a child together. David and Raymond were married to each other, Samantha was single. David and Raymond alternated a daily delivery of sperm to Samantha for eight days, who announced her pregnancy in late 2016. The three friends all announced the birth together with a photo of the two men wearing T-shirts saying “This guy is going to be a daddy” and Samantha wearing a T-shirt that said “This girl is going to be a mama.” They all participated in prenatal appointments and the birth. Shortly after their baby, Matthew, was born, they did a home paternity test and discovered that David was the biological father.
Issues arose regarding parenting time, and, when Matthew was about 6 months old, David and Raymond filed a joint petition seeking “legal custody and shared parenting time” with Samantha. All three parties agreed that Raymond should have standing to seek custody and visitation, a right normally only given to parents. Brooke S.B. granted such standing to a non-biological parent, but in a situation where the child only had one legal parent already established. In this case, granting such standing to Raymond could lead to a finding that Matthew has three legal parents. This has never been done in New York before.
Judge Goldstein relied heavily on the Court’s determination in Brooke S.B., and followed its reasoning. “The Brooke S.B. court gave primary consideration to the well-being of children being raised in nontraditional families,” she wrote. Brooke S.B. in turn, relied on Judge Judith Kaye’s dissent in the case it overturned, Allison D. v. Virginia M2, who saw that the harm in denying status to non-biological parents 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.”
So the question here was really whether Matthew was better served by having three (rather than two) parents — in a situation where all three parents agreed, planned, and worked together to create a parenting relationship, where Raymond’s relationship with Matthew “came into being with the consent and blessing” of Matthew’s biological parents, and where both biological parents agree that Raymond should continue to have standing.
While Judge Goldstein did not determine that Raymond is a legal parent of Matthew, she did find that “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.”
Does this lay the groundwork for a child having three legal parents? We’ll see!
128 NY3d 1 (2016)
277 NY2d 651 (1991)
Joy S. Rosenthal, Esq.
Rosenthal Law & Mediation
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New York, New York 10007
Phone : 212.532.4704