Blood Will Not Justify My Relation: Same‐Sex Couples and their Battle for Standing as De Facto Parents

• DOI: http://doi.org/10.1111/fcre.12367
• Published date: 01 July 2018
• Date: 01 July 2018
• Author: Lea Moalemi

BLOOD WILL NOT JUSTIFY MY RELATION: SAME-SEX COUPLES AND

THEIR BATTLE FOR STANDING AS DE FACTO PARENTS

Lea Moalemi

A parent’s right to maintain a relationshipwith his/her child lies within the Fourteenth Amendment of the U.S. Constitution;

however, this right does not apply to every type of parent. Although the U.S. Supreme Court granted same-sex couples the

right to marry, they still face parental rights issues when their child(ren) are nonbiological or nonadoptive because they lack

standing for custody and/or visitation as de facto parents. Moreover, the rise of nontraditional same-sex-couple families has

been placing states in a predicament, and the lack of uniform rights for de facto parents creates great inconsistency across the

United States. The creation of a uniform statute with specific elements distinguishing de facto parents from mere caretakers

will grant same-sex nonbiological parents standing and create uniformity across the United States.

Key Points for the Family Court Community:

•The rise of nontraditional same-sex-couple families places states in a difficult situation when creating parenting laws.

•Many same-sex couples raise children together and choose not to marry, and further, a nonbiological parent may

choose not to adopt for personal reasons.

•A de facto parent is a nonbiological person who has acted as a parent in fact by establishing an emotional relationship

with the child of the relationship and has assumed day-to-day and major responsibilities for the child for a substantial

period.

•In the event that same-sex couples end their relationship, the law does not treat the nonbiological parent fairly because,

due to a lack of biological connection, they do not have legal standing to seek visitation or custody even though they

behaved as a parent to the child.

•The model uniform statute will grant de facto parents in same-sex-couple relationships legal standing and states may

be more inclined to adopt a de facto parent statute that will preclude strangers from seeking standing.

Keywords: Custody; De Facto Parent; Gay; Lesbian; Model Uniform Statute; Nonbiological; Parent in Fact; Parental

Rights; Same-Sex Couples; Standing; Statute; and Visitation.

I. INTRODUCTION

Brooke was not going to give up easily, at least not without a fight—blood was not going to get

in the way of her love for her baby boy; blood was not going to justify her relation.

1

For this reason,

Brooke battled until the end.

2

After being in a relationship for a year, Brooke and Elizabeth were

engaged in 2007.

3

But at that time, same-sex marriage was illegal in New York.

4

Thus, the couple’s

engagement was a romantic symbol of their hopeful future.

5

Brooke and Elizabeth had the option

to travel to a different state to tie the knot but unfortunately, they did not have the funds to do so.

6

Brooke and Elizabeth, refusing to allow the law to deter them from taking their relationship to the

next level, decided shortly after their engagement to jointly raise a child and that Elizabeth would

carry the child.

7

The engagement and decision to bring a child into the world demonstrated the commitment and

love Brooke and Elizabeth had for one another.

8

Like most happy couples, they did not contemplate

the possibility of ending their relationship nor were they thinking about custody issues.

9

The couple

was in a happy place and had every intention of continuing their relationship.

10

However, unbe-

knownst to them, in the event of a separation, Brooke would not be able to fight for custody

because she was not considered a parent under New York law.

11

Correspondence: LMoale1@pride.hofstra.edu

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 490–505

© 2018 Association of Family and Conciliation Courts

Thereafter, the couple was ecstatic when Elizabeth was artificially inseminated in 2008 and became

pregnant.

12

Brooke supported Elizabeth and their child every step of the way.

13

In 2009 when Elizabeth

gave birth, Brooke was withher at the hospital and cut the umbilical cord, which is one of the mostinti-

mate experiences of life one can experience.

14

When their son was born, the couple decided to give the

baby Brooke’s last name, which validated their relationship further.

15

Thereafter, Brooke and Elizabeth

lived and raised their child together.

16

While Elizabeth returned to work to earn a living, Brooke

remained at home for a year to take care of the child.

17

The child referred to Brooke as “Mama B.”

18

Unfortunately, in 2010, the couple ended their relationship.

19

At first, Brooke visited their son

regularly.

20

However, by the end of 2012, their relationship deteriorated.

21

By 2013, Elizabeth elim-

inated all contact with Brooke and did not allow her to see their son.

22

Brooke was heartbroken;

not only was her engagement called off, but she was also on the verge of losing her son.

23

Yet she

was not going to let that happen.

24

Brooke cared for and raised their child since the day he was

born.

25

She then petitioned for custody and visitation.

26

Brooke was shocked and forlorn when the family court shut the door in her face, ruling that she

“lacked standing to seek visitation or custody”because she was not the child’s mother by blood or

adoption, even though she argued that she was thechild’s de facto parent.

27

Brooke did not end her bat-

tle there; she believed that justice would be served under the law because the love she had for her child

was unbreakable.

28

Brooke was inconsolable and gave her case a last chance when the attorney for the

child appealed the case to the Court of Appeals of New York.

29

Brooke was overjoyed and proud when

the court granted her standing to seek visitation and custody as a de facto parent.

30

Brooke was given

the chance to reunite with her child, raise him, and be there for him throughout his life.

31

Brooke’sbat-

tle was a tough but successful one.

32

Although Brooke succeeded, uncertainties still remained as the

New York Court of Appeals failed to provide specific elements explaining what characteristics grant a

defactoparentstanding.

33

Accordingly, New York and the rest of the United States is in dire need of

guidelines to determine what “factors a petitioner must establish to achieve standing as a de facto par-

ent.”

34

The creation of a model uniform statute containing such guidelines will provide a set standard

as to the characteristics needed to grant de facto parents standing to seek custodyand/or visitation.

Part II of this Note presents background information regarding present-day treatment of de facto

parents and how the rise of nontraditional families has warranted change in the law. It further presents

statistics that represent current law, in regard to recognition of de facto parents, among the fifty states.

Part III lays a foundation of significant de facto parent case law across the United States from 1991

through 2016, illustrating the lack of uniformity. Part IV explains an alternative route that some

same-sex couples take by marrying and adopting to overcome the lack of legislation protecting their

rights. Additionally, it distinguishes same-sex couples who marry and adopt children from same-sex

couples who raise children together, choose not to marry, and where the nonbiological parent chooses

not to adopt for personal reasons. The situations these couples face are the basis for this Note. Part V

presents the need for legislative action and proposes the creation of a model uniform statute that

would grant standing to de facto parents in same-sex relationships. It further explains what factors

are to be considered in determining what constitutes de facto parenting behavior.

To examine the effectiveness of the statute, Part VI presents the benefits of the model uniform

statute, which include the benefits of proposing the requirement of a strict burden of proof and the

emotional and educational benefits that the child will incur, along with common misconceptions

about the influence lesbian, gay, bisexual, and transgender (LGBT) parents have on raising children.

Part VII addresses the counterarguments in connection with the creation of the model statute and

offers solutions to the counterarguments. Part VIII presents a conclusion that weighs the benefits of

the proposed model uniform statute and how the benefits outweigh the drawbacks.

II. DE FACTO PARENTING TODAY

Not all parents have been as fortunate as Brooke.

35

While Brooke ultimately won her battle,

36

most parents do not experience the same happy ending.

37

Achieving de facto parenting

38

rights in

Moalemi/BLOOD WILL NOT JUSTIFY MY RELATION 491