Famously (for divorce lawyers, anyway) New York was the last state in the union to allow no-fault divorces, a change that only occurred in 2010. Prior to passage of those reforms, New Yorkers had to prove fault based on one of several grounds, and the standards that had to be met were high. Spouses were often forced to team up to game the system with tricks like fabricating evidence of adultery in order to prove to the judge that the marriage should be ended.
Since then, it’s fair to say that New York’s family law has undergone a series of almost light-speed changes affecting marriage, divorce, and parental rights. First, the state legalized same-sex marriage in 2011, four years before the Supreme Court’s landmark Obergefell v. Hodges ruling made marriage equality the law of the land. For the first time, gay and lesbian couples, many of whom had been together for years and were raising children together, were able to avail themselves of the numerous legal protections of marriage.
This left some issues from the earlier regime unresolved, however. In 2016, the New York Court of Appeals, the state’s highest court, righted an old wrong when it overturned a quarter-century-old ruling related to parental rights when a couple isn’t married. At issue was the relationship between the non-biological mother half of a lesbian couple, Brooke, and the son the couple had been raising. The pair had the child in 2009, but broke up in 2010. They co-parented for several years, but in 2013, the biological mother of the boy, Elizabeth, effectively cut off Brooke from seeing their son.
Brooke took the matter to Family Court, where she learned something very disheartening. In 1991, in a case known as Alison D., New York’s high court had ruled that “in the absence of a biological or adoptive connection to the child, petitioner was not a ‘parent’ within the meaning of the statute.” Like Alison D. decades ago, Family Court was forced to rule that Brooke lacked standing to sue for custody or visitation with her son. While the case was ongoing, the court had appointed a lawyer for the former couple’s son, and it was that attorney, representing the best interests of the child, who pursued an appeal.
It took several years to advance the issues to the Court of Appeals, but the boy’s attorney ultimately persuaded the panel that the precedent of Alison D. was harming children in New York. It found, “Under the current legal framework, which emphasizes biology, it is impossible — without marriage or adoption — for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child… By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.”
This ruling has had some noteworthy effects, including an almost immediate challenge to a woman’s plan to move to London with her young son. That case involved a woman named Kelly Gunn and her ex-girlfriend Circe Hamilton, who had adopted a child after their relationship ended. Gunn claimed that under the new standard, the loving and involved relationship she had with Hamilton’s son made her, in effect, a parent, and that she should have a legal right to visitation with him. The standard was so new when the case was filed that the judge hearing the initial arguments apologized to Hamilton, saying, “You’re here at an odd moment in that the case came down from our highest court in the state, which basically changed the definition of parenthood.”
Ultimately, courts ruled that Hamilton and her son could move to London without a visitation schedule for Gunn, but the legal action kept them Stateside for several unplanned months.
Another novel case popped up in Long Island in the aftermath of the ruling. In that case, a married couple, Dawn and Michael, became a polyamorous trio with the addition of their girlfriend Audria, who later gave birth to a child. When the baby was a couple of years old, Dawn and Audria decided they wanted their relationship to be exclusive, so they moved out and Dawn began divorce proceedings from Michael.
Michael reached a custody agreement with Audria, because they were both biological parents to the boy, but did not consider his ex-wife to be a parent to the child. In order to protect herself and her parental rights if things with Audria changed, Dawn went to court and asked for a ruling based on the new understanding of parenting in New York. The judge in the case ultimately issued a ruling that read, in part, “Based on the evidence adduced at trial, including the demeanor and credibility of all three witnesses, the in camera interview [with the child] and the factual findings made by this court, it is clear that the best interests of [the son] will be served by granting [Dawn’s] application for shared legal custody.” Tri-custody was born in New York.
Now comes news that the State of New York may soon legalize commercial pregnancy surrogacy, a practice that was banned after the notorious Baby M case in New Jersey in the 1990s. While altruistic surrogacy is allowed under the law, any compensation to the woman carrying the baby is explicitly forbidden. Proponents of the change point to differences in how surrogacy is handled today compared to in decades past; notably, that modern surrogates use implanted fertilized eggs rather than their own genetic material. Opponents of a new law deride the idea as “womb for rent,” and the Catholic Church has compared the practice to child trafficking.
Whether the latest push becomes law or not, we are living in remarkable times when it comes to family law topics, and remarkably complex ones if you have a family law matter. If you’re dealing with a divorce, child custody issues, or family matters outside of traditional roles, an experienced lawyer can help you understand what’s likely and what may be possible. Call the team at Zelenitz, Shapiro & D’Agostino today at 718-523-1111 for a free consultation with an experienced Queens matrimonial law attorney.
