Gays can seek parental rights for nonbiological kids, New York's highest court rules

ALBANY, New York (WABC) -- New York's highest court has expanded the definition of parenthood by ruling Tuesday that former same-sex couples have the right to seek visitation and custody of children even when they aren't the biological or adoptive parent.

The Court of Appeals decision resolves two cases of former unmarried same-sex couples in which the biological mothers kept the children and their ex-partners sought legal standing to see them. In one case, lower courts ruled the ex-partner had no standing. In the other, the ex-partner pays child support and was later granted visitation.

A 25-year-old definition of parenthood required a person seeking custody or visitation to have a biological or adoptive connection to the child. In its decision, the court stated that that standard had become "unworkable" in light of society's "increasingly varied familial relationships."

"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 under Domestic Relations Law," reads the opinion written by Judge Sheila Abdus-Salaam.

In 2006, Elizabeth and Brooke entered into a same-sex relationship and shortly thereafter, decided to build a life together.

Three years later, Elizabeth gave birth to a baby boy. It was their biological son, but the baby took Brooke's last name.

In fact, according to legal papers, Brooke stayed home for a year to be a stay at home mother. She was called 'Mama B'.

Sadly, their relationship would not last. When the baby was only 1, the two mothers split up, the baby going with Elizabeth.

The once idyllic relationship would continue to worsen between the two women, until 2013 when Brooke was told she could no longer have any contact with her son.

Brooke sued, but New York state law was on Elizabeth's side because she was the biological mother. Until Tuesday, when the court ruled that if the other partner, the non-biological or non-adoptive parent, Brooke in this case, can prove he or she were a part of the decision to conceive the child, then they are considered a real parent too, with custodial and visitation rights.

For Brooke, it means she can see her precious son again. It's been a three year, grueling absence. He's now 6.

But all those early years, changing diapers, taking him to the doctor, helping with bills, being his mother, are now being affirmed in the court's eyes. 34-year-old Brooke can see her son again.

New York began recognizing same-sex marriages in 2011, and any children born into a marriage are considered the children of both parents. But the law was far murkier when it came to same-sex couples who had a child before the law was enacted - or who have foregone marriage. Same-sex partners often found it impossible to seek visitation or custody over a non-biological child they had not adopted if the relationship ended.

"We have seen a trail of tears in New York involving these types of situations," said Susan Sommer, senior counsel at Lambda Legal who worked on the case on behalf of the woman who sought joint custody and visitation rights over the son from her previous relationship. "Until now, the court's hands were tied. This allows a far more humane New York."

The ruling will also apply to heterosexual, unmarried couples - meaning an ex-partner could petition for visitation or custody of a child created through artificial insemination if they can show they and their former partner intended to co-parent the child.

(The Associated Press contributed to this report.)
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