Who’s Your Daddy (NY Edition)?

The New York Court of Appeals did what it said it wouldn’t.

[W]e agree with Janice R. that any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent.

A wise sentiment, that lasted all of six years until Judge Sheila Abdus-Salaam wrote the opinion that undid the bright line rule of the 1991 decision in Matter of Alison D. v Virginia M., which held that a person who was neither the biological nor adoptive parent of a child had no standing to seek custody or visitation of a child.  And replaced it with a steaming pile of feelz.

In Matter of Brooke S.B. v. Elizabeth A. C.C., the Court gave in to social justice and gave away the protection of children.

According to the concurrence, Supreme Court had “inherent equity powers and authority pursuant to Domestic Relations Law § 70 to determine who is a parent and what will serve the child’s best interests.” Echoing the dissent in Alison D., and “and taking into consideration the social changes” that occurred since that decision, the concurrence called for a “flexible, multi-factored” approach to determine whether a parental relationship had been established.

To the uninitiated, this backdrop may seem eminently fair, Certainly, “social changes” were occurring, and shouldn’t the law adopt to them?  Non-traditional households were happening, and gaining acceptance. Wasn’t it only right that the law acknowledge their existence? Of course, but the problem isn’t acknowledgement of a problem, but the havoc to be wrought by the solution.

A “flexible, multi-factored” approach is another way of the court saying, we’re going to take a rule that is clear and firm, susceptible to legal planning for the future and immediately determinable, and turn it into years of litigation, during which a child’s life will be put in flux, used as a weapon between warring adults, and left unresolved until so utterly disrupted and confused that the rest of the child’s life will be spent in therapy trying to undo the damage. And, oh yeah, the costs will bankrupt everyone involved in the process except the lawyers.

Still sound like a cool idea? But the demands of social justice, of the grown-ups’ identitarian issues, cannot be ignored, even if they come at the expense of the child over whom they’re fighting and, allegedly, love so much that they can’t bear to live without him. That sound you hear is King Solomon laughing.

As a result, in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term “parent.” Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding, yet denied standing to seek custody or visitation. . . Moreover, Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v Hodges (576 US __, 135 S Ct 2584 [2015]), which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

Reference to Obergefell is gratuitous, tossed in to bolster the suggestion that the court will no longer favor rules premised on heterosexual marriage now that gay marriage is lawful. Except this isn’t a gay/straight issue at all. There is nothing to prevent a non-biological gay parent from adopting the child, obviating any question. What it does is prevent a biological parent from preventing a non-biological, non-adoptive person from forcing their way into a custody or visitation proceeding that will tie up a child’s life for years and eat up a family’s resources, both time and money.

What’s the big deal? First, years of a child’s life are lost, never to be regained. A child used as a weapon in litigation between adults doesn’t get her normal childhood back when it’s over. The viciousness between the adults has a deleterious impact on the child that can’t be undone. It’s childhood lost. Second, this rule precludes a parent’s ability to determine and plan for what legal relationship, if any, her child will have with a subsequent spouse. Allison D. provided a rule, such that a person knew what would give rise to a later claim of parental rights. Now, it’s just a dogfight of she said/she said, with a child in the middle, yet forgotten.

But most dangerous is that the child becomes a weapon between adults who may have once loved each other but are now at war. Perhaps to gain tactical advantage in a monetary settlement, the threat of seeking custody despite neither a biological nor adoptive relationship makes the child a potent tool. Even if it’s just a matter of hatred and vengeance between the adults, there is no harm to be inflicted greater than destroying a child for leverage.

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 (see Alison D., 77 NY2d at 656). 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.

The court “acknowledges” that biological parents have a fundamental liberty interest in raising their children.

[T]he fundamental nature of those rights mandates caution in expanding the definition of that term and makes the element of consent of the biological or adoptive parent critical.

So what does it do to address this mandated caution? Absolutely nothing.

Although the parties and amici disagree as to what test should be applied, they generally urge us to adopt a test that will apply in determining standing as a parent for all nonbiological, non-adoptive, non-marital “parents” who are raising children. We reject the premise that we must now declare that one test would be appropriate for all situations, or that the proffered tests are the only options that should be considered.

The brave new world of social justice law just razed a clear test that accomplished certainty in the life of a child, and sold it off for essentially no test whatsoever that, while pretending to give a damn about the child, is all about social justice based on sexual orientation.  It better feel exceptionally good for those passionate social justice advocates who feel deeply for the adults’ sexual orientation, because the cost in the lives of children will be incalculable.

H/T Jacob Gershman

23 thoughts on “Who’s Your Daddy (NY Edition)?

  1. John Barleycorn

    You ought to park the rage and start paying attention to the amphibians in the stream.

    Microns of anarchy running through every carnation of poly-vinal-cholride just ain’t gonna do it.

    Tastes good though. If one knew what water was

    P.S.. You should celebrate the holiday weekend.
    I can find you a kite.

  2. Patrick Maupin

    Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding, yet denied standing to seek custody or visitation.

    That, right there, does look like a screw-up, whether legislatively or judicially created. As the court has noted, the obvious remedy is to pile another screw-up on top of it, rather than to unwind the first one.

      1. Marc Whipple

        I am not familiar with the rule in NY to which the quote refers (though I can guess how it works) but I’d bet a nice dinner that it is *also* judicially created. Which means, if I’m right, that the court was “forced” to do something to create a new equitable rule because of a new equitable rule it created. It’s equity all the way down!

        Do I win?

        1. SHG Post author

          Like many old laws, it was clear as day when written, only to be muddied up by subsequent cultural shifts, thus requiring the original and well-understood meaning to be written in stone by the court. Then later cultural shifts raised more, newer, questions, and the court stuck to its original meaning. And now this. For all the efforts to keep the definition true to its purpose, they’ve succumbed to muddiness.

  3. Mike

    Well because in situations you outlined above, it’s NOT about the children at all.

    In these kinds of proceedings, it would almost benefit the child/children to be put in custody of a grandparent or other relatives until the problem is resolved

    1. SHG Post author

      Really? Removing a child from his parent for years, denying child a parent and denying a parent a child, is a solution because someone else created a controversy? Of all the truly horrible ideas, yours wins a prize.

      1. Mike

        So what would be a better solution than using the child as a weapon or bargaining chip as you said, ruining the kid’s childhood and possibly putting them in therapy for life?

        1. Andrew Cook

          The post was about how non-traditional families now get to experience all the same child-as-pawn nonsense as traditional families, because a judge said it would be unfair otherwise.

          Guess what? Parking the kid under a grandparent bunker is one of those child-as-pawn nonsense things. And this post’s debate is about the change in the legal landscape, not individual child-as-pawn quibbles.

  4. B. McLeod

    An implicit reservation was that the court would still have to act if the legislature wouldn’t do what was right.

      1. Marc Whipple

        “Legislate” still implies at least a level of consistency or even just some warning of what’s about to happen. What we have here is just plain old doing what’s right.

        And, as Captain Redlegs so profoundly observed, doin’ right ain’t got no end,

        1. SHG Post author

          What the hell are you talking about? Hint: courts don’t legislate. As for your comment, I don’t have a clue what you’re trying to say, but it sounds like a Billy Madison contender.

          1. Marc Whipple

            I was trying to be sarcastically humorous. A swing and a miss. 🙁

            Where I was going was that calling it legislation implies that the legislator – including ones wearing black robes – is trying to implement some kind of consistent change to the system, whereas this just felt like a case of “we don’t find the person who would win under the current rule sympathetic, so we’re not going to do it that way.”

            Of course, given the proliferation of Tragic Victim’s Name Laws, the fact that this failed should not surprise me.

            1. SHG Post author

              Like law, being “sarcastically humorous” is hard to do. Sometimes, it’s impossible for a reader to tell if someone is being sarcastic or humorous. Most of the time, what the reader sees is incomprehensible gibberish. Transmitting humor, while making a point with some small degree of clarity, in writing to people who don’t know you can be very difficult. I would recommend going for clarity before humor, because without clarity, you achieve neither.

  5. Alex Stalker

    I don’t understand why you lay this change at the feet of “social justice” rather than court that didn’t craft a better rule.

    Social justice is becoming the new red menace at SJ.

    1. SHG Post author

      The court undefined a word for everyone, straight and gay alike, to accommodate a small portion of people, kindly referred to as non-traditional. That would be why.

  6. John Rew

    Can someone explain to me why gay marriage has made it necessary to change this. It seems to me that the conclusion is if two heterosexual people are married and one is not related to the child the rules are appropriate but if they affect two married gay people in the same way it’s no longer appropriate. Forgive my non lawyer self but something seems wrong with this reasoning.

    1. Patrick Maupin

      Scott only posted your comment to show everybody else that you didn’t even bother to read the decision before jumping to conclusions.

  7. Jim the Squid

    It makes me think that moneyed members of a family who disagree with the alternative lifestyle of their progeny (or even their grandchildren) will now be able to sue for custody on the claim that the struggling single parent or just getting established alternative family can’t properly provide for the child. They will then out money, outlawyer, and have more time to fight their claim-inevitably winning and wrenching the child from his/her parents. (I could offer an anecdote from my own family, but anecdotal evidence is worthless.)

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