The Past and Future State of De Facto Parents in New York

• Date: 01 July 2017
• DOI: http://doi.org/10.1111/fcre.12283
• Published date: 01 July 2017
• Author: Sara Alpert

FAMILY LAW WRITING COMPETITION WINNERS

THE PAST AND FUTURE STATE OF DE FACTO PARENTS

IN NEW YORK

Sara Alpert

Over the past two decades, the definition of “family” has expanded drastically. To address these changing family dynamics,

many states have adopted de facto parent laws, which recognize a nonbiological or adoptive parent’s right to petition for cus-

tody or visitation in strict circumstances. These laws differ drastically from state to state, leaving no common understanding of

the requirements to be a de facto parent. Until recently, New York law refused to recognize de facto parents within the Domes-

tic Relations Law, leaving New York as one of the only states without this important distinction. However, this year the Court

of Appeals crafted a narrow exception to the rule and allowed for a de facto parent to petition for custody or visitation in

extremely limited circumstances. This article proposes that the Court of Appeals’ decision was too restrictive and that New

York should adopt a legal framework that reflects this new type of parent, while still recognizing public policy concerns.

Key Points for the Family Court Community:

In August 2016 the New York Court of Appeals formally expanded the definition of parent under the state Domestic

Relations Law (DRL) Section 70. Although a progressive step, this decision still lags behind many other states in

affording options to other categories of parents.

Other states have adopted broader interpretations of parents, which many courts and states have deemed de facto

parents. Many states have followed In re Custody of H.S.H-K, which set forth a four-factor test to determine whether

an individual who is not a biological or adoptive parent can petition for custody or visitation.

There are many public policy concerns in adopting a broader test, including unnecessary interference into a parent’s

fundamental right to make decisions pertaining to their children as well as the ability of a third party, such as a babysit-

ter or ex-boyfriend, to gain custody of a child in some cases.

Rather than expand the definition of parent through a case-by-case determination like in Matter of Brooke, the New

York Court of Appeals should create a broad, all-encompassing definition of parent when the issue is next brought

before the court.

Keywords: Best Interests; Custody; De Facto Parent; Marriage Equality; Parent; and Visitation.

INTRODUCTION

Over the past twenty years, the meaning of family has drastically changed. The definition has

been fluidly expanding from only one woman, one man, and a child.

1

This expansion has encom-

passed a growth of same-sex couples, single-parent households, and other unique family structures.

2

However, court jurisprudence has been slow to reflect this change, leaving many families unrepre-

sented under the law. This concept was illustrated by the decision in Obergefell v. Hodges,

3

which

legalized same-sex marriage four years after New York’s Marriage Equality Act had been passed.

4

In writing for the majority, Justice Kennedy recognized the significance of this decision not only

for same-sex couples but also their children. He explained,

Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of

knowing their families are somehow lesser. They also suffer the significant material costs of being raised

by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.

The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

5

Correspondence: Sara.alpert@law.nyls.edu

FAMILY COURT REVIEW, Vol. 55 No. 3, July 2017 458–471

V

C2017 Association of Family and Conciliation Courts