Kramer Levin Helps Obtain Landmark Court of Appeals Ruling on Rights of Non-Biological Parents

Kramer Levin has helped win unanimous affirmance in the New York Court of Appeals of an important ruling protecting the rights of non-biological parents to seek custody and visitation. The court held in the case of Kramer Levin pro bono client Estrellita A., and in the companion case Matter of Brooke S.B. v. Elizabeth C.C., that “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.”

The decision overruled the court’s long-criticized decision from twenty-five years ago in Alison D. imposing a bright-line rule that rejected standing for non-biological, non-adoptive parents. The court also expressly recognized that the national embrace of marriage equality reflected a societal shift towards respect for the right of same-sex couples and their children, and that the rule in Alison D. had imposed “disproportionate hardship on the growing number of nontraditional families across our State.” The court held that at least where a couple decides together to conceive and the non-biological parent thereafter functions as a parent, the non-biological parent will have standing after dissolution of the relationship to seek custody and visitation. The court left open in what other circumstances standing may be recognized for non-biological parents, but stressed that it was eliminating the bright-line bar on such recognition.

As a result, the court remanded the Brooke B. case for a further factual hearing, but affirmed in the case of Kramer Levin’s client Estrellita based on the correct ruling of the courts below that Estrellita was entitled to standing even under Alison D. based on judicial estoppel because the biological parent in her case had earlier sought and obtained a ruling that Estrellita was a parent for purposes of child support.

Litigation associate Andrew J. Estes served as lead appellate counsel and argued the case in the Court of Appeals, assisted by litigation partner Jeffrey S. Trachtman, litigation associates Jason Moff and Catherine Hoge. Susan G. Mintz of Gervase & Mintz P.C. served as co-counsel. The National Association of Social Workers and many other social services and civil rights organizations and bar associations appeared as amici curiae and filed briefs with the Court of Appeals supporting Estrellita.

The decision was reported in the New York Law Journal.