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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

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DO SAME SEX PARENTS HAVE EQUAL RIGHTS TO CHILD VISITATION AND CHILD CUSTODY?
November 27, 2023

DO SAME SEX PARENTS HAVE EQUAL RIGHTS TO CHILD VISITATION AND CHILD CUSTODY?

Same sex parents who adopt the children of the marriage have equal rights to child visitation and child custody but what about if they are not married? Here there is a different standard of proof.

It has been held that a nonbiological and non-adoptive parent has standing to sue for custody or visitation as long as they can prove that the biological parent and the other party had a previous agreement in place to have the child and raise the child together as equal parents.  The Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 28, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016] is a case that demonstrates this point of law.  However, the evidentiary showing consists of a high standard of proof of clear and convincing evidence.

You can try to meet that burden of proof in a variety of ways, but it would then be up to the Court to see if you satisfied that burden of proof.

Let us say that you did not formally write up an agreement to coparent a child conceived of the relationship.  You can meet that burden of proof by a variety of ways so long as you can prove that the parties really intended for this to happen. Social media, letters and internet postings can show this intention to raise child ren together as can the types of events both parties attended, such as a bris, baby showers, engagement parties, and other such family gatherings attended in anticipation of raising children together in the future.   What the parties say to others can also be considered. For instance, if the biological parent refers to the nonbiological parent as the child’s “mother” or “father” an argument can be made that the parties are both parents withing the meaning of a New York Custody Article Six proceeding.  Nevertheless, it is still up to th Court to decide whether the burden of proof has been met and the nonadoptive parent has a big burden, as the Appellate Division gives great importance to the credibility of the lower court’s findings in reviewing an unfavorable family court decision. See Matter of Muldavin v. Muldavin, 248 A.D.2d 209, 209, 670 N.Y.S.2d 24 [1st Dept. 1998]. 

What is the takeaway here if you are the non-biological parent? Try to adopt the child as soon as possible or else, at the very least,  enter into a written contract setting forth both of your intentions to raise the child together regardless of the biological status. After the child is born, make other writings and keep track of other items of evidence that will help you make the argument that you are a parent in the event that you become estranged from the biological parent and still wish to see the child.

 

By: Your New York Divorce Attorney 

 

Lisa Beth Older, Esq.