New York Non-Bio Mom Fights to Parent her Child

A non-biological mother in New York—generally considered an LGBTQ-friendly state—is fighting for the right to parent her child.

Lambda Legal is representing Brooke S.B. as she seeks to continue parenting and financially supporting the six-year-old son she and her former partner, Elizabeth C.C., had planned and were raising together.

The two women met in 2006, and settled in upstate New York in 2007, four years before marriage equality there.  Brooke gave Elizabeth a ring and they intended to marry as soon as they could. In 2008, Elizabeth became pregnant using an anonymous donor. Brooke was there at the delivery and cut the umbilical cord. Their son had Brooke’s last name on his birth certificate and both women were named as his parents on his birth announcements and baptism certificate. Brooke cared for him in all of the ways one might expect a parent to care for a baby.

The couple’s relationship ended in 2010, but Brooke continued to parent their son. He spent several nights a week with her, split time with both mothers on major holidays, and visited his grandparents on Brooke’s side of the family. Brooke continued to bring him to doctors’ appointments and daycare, and to provide for him financially.

In 2013, however, Elizabeth abruptly cut off contact between Brooke and their son. Brooke filed for custody and visitation—but found her way blocked by precedent in the state’s highest court. Susan Sommer, Lambda Legal’s Director of Constitutional Litigation, explained:

“New York law on this issue is stuck in 1991, when the Court of Appeals ruled in Alison D. v. Virginia M. that non-biological, non-married, non-adoptive parents have no claim to protect their parental relationships with children they raised with a same-sex partner. It’s long past time for that to be corrected and clarified.

The family court dismissed Brooke’s petition and the appellate court affirmed the decision. Yesterday, Lambda Legal argued before the Court of Appeals, the state’s highest court, “that the prevailing New York legal precedents do not account for the myriad ways that people make families, including same-sex couples, and that to consider non-biological parents ‘legal strangers’ to the children they have cared for since birth is not in the best interest of these children.”

I’ll observe a few things:

1. Brooke apparently never adopted the child—but Lambda notes both “the couple’s inability to marry during the time of their relationship and the lack of resources to adopt.” Requiring the expense and intrusion of a second-parent adoption when a child is born to one parent is unfair no matter what—but especially impacts families of fewer financial means. (Having said that, it is an unfortunate fact that second-parent adoptions are still a good idea at this point in time.)
2. Marriage shouldn’t matter here. Different-sex couples who create and parent a child together outside marriage are considered parents to their child. That should also hold true for same-sex couples.
3. New York isn’t the only supposedly LGBTQ-friendly state in which non-bio parents are fighting for their rights. A non-bio mom brought a similar case to the highest court in Massachusetts this past April. I can only imagine what it’s like for non-bio parents in less welcoming places.
4. Several contributors to Blogging for LGBTQ Families Day wrote about families formed after separation/divorce of a couple. Brookbeach, in “The Other Mother and Me,” tells of marrying a woman who already had three adopted daughters and was co-parenting them in a joint-custody agreement. And in “Easier Said than Done,” the author of Blah Blah Blog describes the new relationships both she and her ex have formed and how their child now has four parents. Point being, our families are just as imperfect as any others. Some last; some don’t; some evolve. The law should treat us all equally, always with the best interests of the children in mind.

(Stay tuned next week as I continue to look for other themes and interesting tidbits in this year’s wonderful array of Blogging for LGBTQ Families Day submissions.)