Ropes & Gray Represents Amici in an Important New York Case on Parental Rights

A Ropes & Gray team drafted and filed amicus briefs on behalf of a number of advocacy organizations supporting the successful parties in two cases before the New York Court of Appeals (Estrallita A. Amicus Brief, Brooke B. Amicus Brief). The Court’s decision in those cases, released on Aug. 30, granted standing rights to non-adoptive, non-biological parents who seek to establish custody or visitation rights under New York’s parenting statute.

Both cases concerned children born to unmarried same-sex couples that had together chosen to have children, with one of the two as the biological parent, but where the second parent did not formalize an adoption. After the parents’ relationships ended, the biological parents took custody of the children and sought to deny the non-biological parent any custody or visitation rights to the child. The non-parents suits for custody and visitation rights ran up against the 1991 case of Matter of Alison D. v. Virginia M, in which the Court of Appeals had held that individuals who could not establish legal or biological parentage were “nonparents” and thus “had no standing to bring a petition for visitation.” Ropes & Gray’s brief, consistent with the briefs of the non-biological parents, argued that Alison D. wrongly prevented persons who had served as a child’s parent since conception from establishing parental rights, was inconsistent with subsequent developments in New York law and law in other states, and unduly cabined the parentage statute in a way that compromised the “best interest of the child” analysis that is at the center of the law of custody and visitation.

The Court of Appeals ultimately concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under New York law, explicitly overruling Allison D. The Court declined to announce a broader test to determine all situations in which a non-biological, non-adoptive parent can have standing to pursue parental rights, but held that here, the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. 

The amicus briefs were filed on behalf of the National Center for Lesbian Rights, the American Civil Liberties Union, the New York Civil Liberties Union, and the New York City Gay and Lesbian Anti-Violence Project.

Ropes & Gray’s team was led by business & securities litigation partner C. Thomas Brown (New York), and included business & securities litigation associate Kathryn Wilhelm (Boston).