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Gay custody battles expand definition of parent

New York ruling has broad implications for unmarried heterosexual couples as well


Gay custody battles expand definition of parent

New York’s highest court changed the definition of parenthood last week to include former partners with no biological or adoptive tie to a child.

The decision by the New York Court of Appeals overturns a 25-year-old definition restricting parenthood to a biological or adoptive person. The new definition expands the term parent to include caretakers who initially agreed to conceive and raise a child. Under the ruling, if an unmarried same-sex couple with children splits, the non-biological partner has a right to the children just like the biological partner.

The court said the previous definition was “unworkable when applied to increasingly varied familial relationships.”

But the ruling also applies to unmarried heterosexual couples who conceive through artificial insemination, and critics say it might open the door to individuals with no close ties to a child dragging a biological parent into court to fight for visitation and custody rights. It also means marriage or adoption is no longer necessary to establish parental rights.

The previous definition, established in 1991, set a clear delineation: parenthood comes through biology or adoption only. The court then said such a specific definition was needed to promote “certainty in the wake of domestic breakups,” according to The Wall Street Journal.

But last week the New York court said such certainty was inadvertently separating children from persons who had acted as a parent.

The court ruled on two specific cases, both involving former lesbian couples. In both cases the couples agreed to conceive a child but later split up. The biological mothers took full custody and eventually cut off contact between the children and their former partners. In the first case, the non-biological partner sued for custody and visitation rights. Lower courts ruled the partner had no right to the child. In the second case, the biological mother wanted child support from her former partner without allowing custody and visitation rights.

Last week’s ruling allows both former partners to petition for parental rights in lower courts.

“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,” Judge Sheila Abdus-Salaam wrote in the majority opinion. The court specifically said the ruling did not apply to couples co-parenting a child who did not have an agreement in place before conception, leaving the door open for future court decisions in those situations.

LGBT advocates applauded the decision.

“Finally, New York is bringing its law in line with the reality of thousands of children who need protection for their relationships,” Susan L. Sommer, attorney for one of the partners, told The Wall Street Journal. “No longer is there some harsh, absolute bar.”

Other states, including Maryland, Colorado, Texas, and New Jersey, have already moved to expand the definition of parenthood. The Massachusetts high court is expected to issue a decision in a similar case soon.

But critics say changing what it means to be a parent further muddies the water surrounding marriage and children.

“Moving away from the limited definition of families as being formed by marriage, biology, or adoption is a move in the direction of the further deconstruction of the family as an institution,” said Peter Sprigg, senior fellow for policy studies at the Family Research Council. “Granting greater power to the government to define or even create ‘family’ or ‘parental’ relationships, meanwhile, is a move toward concentrating greater societal power in the hands of the state across the board.”

Kiley Crossland Kiley is a former WORLD correspondent.


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The new definition "expands the term parent to include caretakers who initially agreed to conceive and raise a child." This appears to expand legal adoption to included implied adoption. As such, if a single mom with children lives, in unmarried status, with her partner (male or female) with the implied agreement to raise the children, that partner would also be given parental rights, which might include child support payments or visitation rights. It seems that what this does is to expand the pool of people who are considered important for the welfare of the children. I don't know why we wouldn't consider expanding the pool further to include grandparents or what we used to call "aunts" and "uncles," significant neighbors who were biologically unrelated. The bothersome issue is not the expansion of this pool. It is how the courts decide to use this pool. A wise court would employ it, as Solomon, for the betterment of the children. However, who is so wise? It easy to imagine such a wise court coming under attack. It is not clear that we want to grant the courts such power. So what will probably happen is that the court will administer among the pool without due consideration to the specifics of each member of the pool: all will be treated the same. All of this in our enduring attempt to make neat and tidy our bureaucratic mass society. Every child is assigned someone who is responsible for them. The new definition simply adjusts the algorithm. Who knows what might happen next? Consider an unmarried couple. They willingly conceive a child with the expectation of raising the child together. Does the woman have exclusive rights to abort the child independent of the biological father's permission? Right now, the father, married or not, has no such rights. In fact, the father, married or not, still has financial obligations to support the child should it be born, independent of the father's wishes. Interesting, isn't it? How much trouble we can get ourselves into. There's only one parent we can really trust and rely upon: our Father who art in heaven.