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 ), 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